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Home My WebLink AboutCORRESPONDENCES I /� �� ' /- / The City of College Station, Texas C14-11'c) Embracing the Past, Exploring the Future. S � P S Legal Department P.O. Box 9960 • 1101 Texas Avenue • College Station, TX 77842 • (979) 764 -3507 • FAX: (979) 764 -3481 www.ci.college - station.tx.us April 27, 2004 By Facsimile (817) 795 -4864 & Regular Mail Mr. Larry L. Fowler SHANNON, GRACEY, RATLIFF & MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 RE: Crux Financial Services, Inc. Dear Larry: At this point, your client's project should be on its way to completion. If that is incorrect, please let me know. The City certainly wishes you and your client the best of luck on his project. Sincerely, Harvey C ill, Jr. City Attorney HC: jls cc: Tom Brymer Glenn Brovjn Jane Kee ✓ Roxanne Nemcik O: (Litigation Binders- Filesl University Preservel Correspondence104 -27 -04 ltr .doc Home of Texas A &M University Home of the George Bush Presidential Library and Museum Deborah Grace - Re: University Preserve Subdivision Replat Page 1 From: Spencer Thompson To: Dale Browne Date: 4/19/2004 10:42:16 AM Subject: Re: University Preserve Subdivision Replat `� 1 Dale, Now, the P &Z approved the plat with the easement. The only additional thing to do is investigate the implementation of drainage options. The runoff might go into the pond, might go around the pond, might discharge somewhere along the easement. That all needs to be worked out. Then I can get back to the P &Z about Mr. Mikeal's drainage concerns. But as far as the plat is concerned, it must show the easement no matter what. You should be able to file the plat ASAP. Please remember applicable Parkland fees. st Spencer G. Thompson, Jr. Engineering Services City of College Station PO Box 9960 College Station, TX 77842 Ph. 979.764.3570 Fx. 979.764.3496 www.cstx.gov »> "Dale Browne" <dalebrn @cox - internet.com> 4/19/2004 9:22:37 AM »> What is you status on the report to the P &Z regarding the drainage for the above referenced project. Do we need to get together to discuss this matter further. My client would like to move the process along as fast as possible. He needs to plat filed as soon as possible. Please let me know what I can do to help with regard to this matter. Thanks for your help. Please note my new contact information below. McCLURE & BROWNE ENGINEERING /SURVEYING, INC. J. Dale Browne, Jr., P.E. McClure & Browne Engineering /Surveying, Inc. 1008 Woodcreek Drive, Suite 103 College Station,`fexas 77845 Phone: (979) 693 -3838 Fax: (979) 693 -2554 Email: dalebrn(c� cox- internet.com CONFIDENTIAL NOTICE: The information contained in this transmission is considered by the sender to be confidential. This material is intended only for use of the recipient named above. If the reader or other recipient of this material is not the intended recipient named above, please notify me and delete this transmission. Thank you. Agreement for Electronic Files:It is understood and agreed, that Ash & Browne Engineering, Inc., upon release of these electronic files in no longer responsible for their use or modification. The user of the attached electronic media accepts full responsibility and liability for any consequences arising out of the use of this electronic data. Deborah Grace - Re: University Preserve Subdivision Replat Page 2 • CC: Bob Mosley; Deborah Grace; Natalie Ruiz The Ci of 1 _ I 4-J (.1 College Station, Texas Embracing the Past, Exploring the Future. 8 � � S Legal Department P.O. Box 9960 • 1101 Texas Avenue • College Station, TX 77842 • (979) 764 -3507 • FAX: (979) 764 -3481 www.ci.college - station.tx.us MEMORANDUM • TO: Tom Brymer, City Manager Glenn Brown, Assistant City Manager Kelly Templin, Director of Development Services Roxanne Nemcik, First Assistant City Attorney FROM: Harvey Cargill, Jr., City Attorney i DATE: January 26, 2004 RE: University Preserve Attached are copies of letters from Larry Fowler dated January 22 and January 23, 2004. At your earliest convenience, I need to know the response you would like to give. HC:jls Attachments • Home of Texas A &M Universe jslo :Ilitigation binders- filesluniverses��v ere ed l ��lggewasi filie"MLiseum 1- 23 -04; 4:46PM;SGRM Arlington ;8177954864 4 1, LAW OFFICES SHANNON, GRACEY, RATLIFF & MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 (817)795 -4866 Telecopier (817)795 -4864 FAX TRANSMITTAL -- TO: - -- -- __ FROM: — — -- HARVEY CARGILL, JR. LARRY L. FOWLER, JR. COMPANY: DATE: City Attorney's Office January 23, 2004 FAX NUMBER: TIME: 979 - 764 -3481 04:48 pm PHONE NUMBER: NO. OF PAGES INCLUDING COVER: 979 -764 -3507 5 RE: REFERENCE NUMBER: DEASON /CITY OF COLLEGE STATION 14623 -1 ORIGINAL WILL FOLLOW BY MAIL X ORIGINAL WILL NOT FOLLOW NOTES /COMMENTS: See attached IMPORTANT /CONFIDENTIAL: This facsimile and any accompanying documents is intended only for the use of the individual or entity to which it is addressed. This message contains information from the law firm of Shannon, Gracey, Ratliff & Miller, which is privileged, confidential and exempt from disclosure under applicable law. If you are not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately at our telephone number set forth above. We will be happy to arrange for the return of this message to us via the United States Postal Service at no cost to you. -- - - -- - -- - IF YOU HAVE DIFFICULTIES RECEIVING THIS FAX, • PLEASE CALL 817 - 299 -2841 1- 23 -04; 4 :46PM;SGRM Arlington 8177954864 tt " LAW OFFICES SHANNON, GRACEY, RATLIFF & MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 (817)795 -4866 Telecopier (817)795-4864 Larry L. Fowler (817) 299 - 2841 lfowler@shannongracey.com 14623 -1 January 23, 2004 VIA TELEFAX 979 - 764 -3481 Harvey Cargill, Jr. City Attorney's Office City of College Station, Texas P. 0. Box 9960 1101 Texas Avenue College Station, TX 77842 Re: Crux Financial Services, Inc. Dear Mr. Cargill: Enclosed with this letter are two proposed plats for the subject subdivision. As you can see, one plat would increase the number of lots by two. The second alternative would increase the number of lots by thirteen. My client would like to do the re -plat which increases the number of lots by two. However, as I told you in my letter yesterday, he has a very short fuse on that particular scenario. With regard to that particular proposal, there is a doctor moving to College Station who has expressed a willingness to purchase a home in the subject subdivision. The home would sell for approximately $500,000. If the doctor purchases this home for $500,000, there are a couple of other builders who have committed to build four other homes in the same price range in the subdivision. The problem is the doctor wants to know within the next thirty to forty-five days that the platting issue has been resolved. Obviously, he wants to know before he buys the home what the lot configurations are going to be. Because of these two possible scenarios, what I would like to do is get the City to confirm that the two plats which are being submitted both meet the statutory requirements for platting. We could then go forward and have the ordinance amended. Then, if the doctor was still willing to purchase the property and we are able to resolve this within the next thirty to forty -five days, my client would submit the plat which increases the number of lots by two. Alternatively, if we cannot get it done on that short of a basis, my client would submit the plat which increases the lots by thirteen. 1- 23 -04; 4:46PM;SGRM Arlington ;8177954864 # Harvey Cargill, Jr. January 23, 2004 Page 2 Your cooperation on this matter is appreciated. Please let me know how you desire us to proceed. Sincerely, A Fowler LLF /sgb c: Switzer L. 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X11 i. 1 ` / 15272 N 50'22'10 �� 0, - LI _ - p - Al"---- N 73. y -1r P1 I 8 R.25.00' /a T Pd C R50' 1 fo ..ot w D- 3400'SS` ( 11.31,90 01171010 l P.V.E --1 ---. 1 �' 1.939.09' 1...140 1a 1 --.. ON •••"` As, IRE DOCUMENT WAS UNIVERSITY PRESERVE �� . • rt.: s , ", J. DALE BRo �, P. P.E. 81890 DENIED REQLAT ' ; ".ic I , 01/23/04 (MAY 95, 2003) it' * ALTERATION OF A SEALED ° LOT INCREASE FROM 0 J. DALE BROWNE, JR. DOCUMENT \ 22 LOTS TO 35 LOTS 81890 WITHOUT PROPER NO1IFICATION ♦ •o-".� O 0 THE RESPONSIBLE 63141316611 t ! STE��`.•' IS AN OFFENSE UNDER THE SCALE: 1" - 100' Asa a 611E E �e�. plc. , I . /ORAL • TEXAS ENGINEERING PRACTICE ACT P.O. BOX 10838, Conegc Statical, Tom 77842 , ,, Ss,, 11042002-006-01 97941454914 977-W469 Fas 979-8464914- , 1-22-04; 3:18PM ;SGRM Arlington ,;8177954864 ,t 1 , LAW OFFICES SHANNON, GRACEY, RATLIFF & MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 • (817)795 -4866 Telecopier (817)795 -4864 FAX TRANSMITTAL TO: FROM: HARVEY CARGILL, JR. LARRY L. FOWLER, JR. COMPANY: DATE: City Attorney's Office January 22, 2004 FAX NUMBER: TIME: 979 -764 -3481 02:59 pm PHONE NUMBER: NO. OF PAGES INCLUDING COVER: 979 - 764 -3507 RE: REFERENCE NUMBER: DEASON/CITY OF COLLEGE STATION 14623 -1 _ ORIGINAL WILL FOLLOW BY MAIL X ORIGINAL WILL NOT FOLLOW NOTES /COMMENTS: See attached IMPORTANT /CONFIDENTIAL: This facsimile and any accompanying documents is intended only for the use of the individual or entity to which it is addressed. This message contains information from the law firm of Shannon, Gracey, Ratliff & Miller, which is privileged, confidential and exempt from disclosure under applicable law. If you are not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately at our telephone number set forth above. We will be happy to arrange for the return of this message to us via the United States Postal Service at no cost to you. IF YOU HAVE DIFFICULTIES RECEIVING THIS FAX, PLEASE CALL 817 - 299 -2841 3: Arlington ;B177954864 # LAW OFFICES SHANNON, GRACEY, RATLIFF & MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 (817)795 -4866 Telecopier (817)795 -4864 Larry L. Fowler !fowler shannon race (817) 299 -2841 @ g ycom . 14623 -1 January 22, 2004 VIA TELEFAX 979 -764 -3481 Harvey Cargill, Jr. City Attorney's Office City of College Station, Texas P. 0. Box 9960 1101 Texas Avenue College Station, TX 77842 Re: Crux Financial Services, Inc. Dear Mr. Cargill: I am in receipt of your recent correspondence. I appreciate the City's proposal to address Crux Financial Services, Inc.'s concerns by amending the subject ordinance. If the ordinance is amended, it would appear the only possible areas of friction would be the subsequent approval of the plat. Accordingly, in order to make sure there are no unforeseen difficulties regarding the plat, and before the City expends the energy to amend the ordinance, I would suggest that Crux submit to the City for review its proposed plat for the subdivision. The plat would be prepared in order to comply with the City ordinances, assuming the ordinance is amended. If you could have staff review the plat and let me know that it meets the City's requirements, specifically Sections 212.010 and 212.002 of the Local Government Code, and the City's Subdivision Ordinance, then it would appear it should be smooth sailing after the ordinance is amended. Crux is in the process of having the plat finalized by its engineers and it should be ready this week. With regard to the substance of the plat, there is apparently two options on my client's' end. The plat you received and which you forwarded to me, is one alternative, which is probably more palatable to the City. This would result in only two additional lots. The problem with this plat is that in order for my client to go this route, we would have to have that plat approved within the next thirty days. Apparently, there is an individual who has committed to buy a home on one of the lots for a very significant sum. Based on his purchase, there are other home builders who have agreed to purchase lots in the subdivision. The problem is, the individual who has committed to purchase the home has indicated he will not go through with the purchase unless he has a definitive answer to what the replat is going to look like within the next thirty days. 3M:S,PM Arlington .1779E4 E4 a _ Harvey Cargill, Jr. January 22, 2004 Page 2 If the transaction with this purchaser falls through, then we would be submitting a plat substantially identical to the plat which was previously submitted which has the additional 12 lots. That scenario is probably not as palatable to the City, but would be my client's only alternative if the sale which is currently pending fell through. Would you please let me know if this proposed course of action, submitting the plat for preliminary review prior to the ordinance being amended, is acceptable. Moreover, would you please let me know who the contact person should be to be provided with the plat. Also, if you could let me know if you think there is any way to get the configuration approved that simply adds the two additional lots, as shown on the plat you have already seen, within the next thirty days, I would appreciate you letting me know what we need to do in order to accomplish that. I look forward to hearing from you. Sincerely, e r L. Fowler LLF /sgb c: Switzer L. Deason 411 9, o ci The Ci of g f Col e e Station, Texas Embracing the Past, Exploring the Future. S � xP 8 Legal Department P.O. Box 9960 • 1101 Texas Avenue • College Station, TX 77842 • (979) 764 -3507 • FAX: (979) 764 -3481 www.ci.college-station.tx.us December 2, 2003 By Facsimile (817) 795 -4864 & Regular Mail Mr. Larry L. Fowler SHANNON, GRACEY, RATLIFF & MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 RE: Crux Financial Services, Inc. Dear Mr. Fowler: Thank you for responding to my request of November 26, 2003, by providing to me a copy of your September 12, 2003, letter to the City Manager. In the September 12, 2003, correspondence, you cite TEXAS LOCAL GOVERNMENT CODE § 245.002 as entitling a person "to complete the development of property pursuant to the laws in place when it began the development process." SECTION 245.002 provides for the approval, disapproval or conditional approval of an application for a permit solely on the basis of any orders, regulations, ordinances, rules, expiration dates, or other properly adopted requirements in effect at the time "the original application for a permit is filed." I am unaware of any legal authority that provides for vesting as a result of a pre - development meeting, as in this case. If you are aware of such legal authority, I would appreciate your sending a copy of the same. Thank you in advance for responding to the above question and comment. I look forward to hearing from you and resolving this matter. Sincerely, Harvey Cargill, Jr. City Attorney cc: Tom Brymer O:1Liiigation Binders- FiieslUniversity PreservelCorrespondencell2 -02 -03 lir to Fowler.doc. Home of Texas A &M University r'2- 1 -03; 9:39AM;SGRM Arlington :8177954904 yx -. LAW OFFICES SHANNON, GRACEY, RATLIFF & MILLER, L.L.P. I000 Ballpark Way, Suite 300 Arlington, Texas 76011 (817)795 -4866 Telecopier (817)795 -4864 Larry L. Fowler (817) 299 -2841 Ifowler@shannongracey.com 14623 -1 December 1, 2003 VIA TELEFAX 979 - 764 -3481 Harvey Cargill, Jr. City Attorney's Office City of College Station, Texas P. 0. Box 9960 1101 Texas Avenue College Station, TX 77842 Re: Crux Financial Services, Inc. Dear Mr. Cargill: Thank you for your prompt response to my letter of November 24, 2003. As of the present time, there has only been one letter sent to the City regarding this matter. That was the letter of September 12, 2003. I was under the apparently mistaken belief that the letter was sent to you in addition to Mr. Brymer. A copy of that letter is enclosed for your information along with the attachments. I am also forwarding one additional document which is a fax from the City Secretary to my client's engineer. As you can see from reviewing that fax, the City Secretary is forwarding to the engineer on January 4, 2002, a copy of the regulations which it represented were in force at that time. After you have had the opportunity to review this information, please contact me so we may discuss this matter. Sincerely, . Fowler LLF /sgb Enclosure c: Switzer L. Deason 1-03; 9:39AM:SGRM Arlington 8i7795a86a u LAW OFFICES SHANNON, GRACEY, RATLIFF & MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 ( -4866 Telecopier (817)795 -4864 Larry L. Fowler (817) 299 -2841 Ifowler @shannongracey.com 14623 -1 September 12, 2003 VIA FEDERAL EXPRESS Mr. Tom Brymer City Manager — City of College Station, Texas P. 0. Box 9960 1 101 Texas Avenue College Station, TX 77842 -9960 Re: Crux Financial Services, Inc. Proposed Development of Approximately 14 Acres on Property Located in College Station, Texas - University Preserve Subdivision Dear Mr. Brymer: This office represents Crux Financial Services, Inc. ( "Crux "). I am contacting you regarding various efforts Crux has made with regard to development of certain real property it owns in College Station, Texas. The principal of Crux is Switzer L. Deason. Mr. Deason is the individual who has been in contact with the City regarding this issue. The central issue with regard to the property is that Crux desires to plat and develop the property with lots which have a minimum lot width less than the City contends is allowed by its current zoning ordinances. Specifically, the ordinance in question was adopted by the City Council on January 24, 2002. The ordinance purports to amend Section 18 of Chapter 9, Subdivisions, of the Code of Ordinances of the City of College Station, Texas, related to the platting and replatting within older residential subdivisions. Based upon our review, it appears this ordinance is merely a codification of a moratorium ordinance which the City passed and renewed over several years, effective) development of certain areas of College Station. A copy Y h e e ordi n a g any is i enclosed for your information. PY of the moratorium and the ordina The purpose of this letter is to request that the City approve the replat Crux has previously submitted to the City for this property. The replat as submitted minium widths of 65 feet. The average width of all lots in the proposed e replat of the r subdivisi nliis 12 1 -03; 9 :39AM :SGRM Arlington 8i 77954864 4i • Mr. Tom Brymer City Manager — City of College Station, Texas September 12, 2003 Page 2 79 feet, and the area of each lot is greater than the 8,500 square feet required by the City's current Ordinance. The City has indicated that it will not approve a plat unless the lot widths are at least 113 feet. The City's requirement of 113 feet minimum frontage results in a plat with twelve less lots than the plat requested by Crux. It is our belief that the City has no discretion with regard to the approval of Crux's plat. The plat Crux has submitted to the City complies with all applicable ordinances which were in effect at the time Crux began the development process of the subject property. The current ordinance was not in place when Crux began its development process. Moreover, it is our belief that even if the ordinance had been adopted by the City when Crux began its development process, such ordinance is unenforceable. With regard to the first issue, I am sure you are aware that TEXAS LOCAL GOVERNMENT CODE § 245.002 provides that a person, such as Crux, is entitled to complete the development of property pursuant to the laws in place when it began the development process. In the present instance, the City adopted a series of moratoriums beginning in the year 2000 which were subsequently renewed several times, but the last of which expired on January 1, 2002. The ordinance which formerly amended the subdivision rules of the City of College Station and which essentially adopted the text of the moratorium, was not adopted by the City until January 24, 2002. Accordingly, between January 1, 2002 and January 24, 2002, there was no moratorium in place and no ordinance had been adopted which would have required the minimum lot frontage the City currently contends is in place. On January 2, 2002, Crux met with the City and submitted its initial plat for the subject subdivision, which included lots less than 113 feet in width. A copy of such submittal is enclosed for your review. At the meeting on January 2, 2002, the City informed Crux that the moratorium was still in place and that it would not approve the subdivision plat because the frontage did not meet the City's requirements. I would point out that the City's representation that the moratorium was still in place was false and in fact, the plat which was submitted by Crux to the City complied with all applicable zoning and subdivision ordinances which were in place on January 2, 2002. In view of the fact that Crux submitted formal drawings and the subdivision plat to the City at a time when neither the moratorium nor the ordinance were in place, Crux is entitled to develop the property pursuant to the rules which were actually in place on January replat which has been submitted to the City, and which the Cit has rej0 d, comp1 es division with those rules. Next, even if Crux had not submitted the plat application to the City until after the ordinance was adopted on January 24, 2002, it is the belief and position of Crux that the ordinance is unconstitutionally vague and is not enforceable. In particular, I would invite you to look at the • X 12- 1 -03; 9:39AM;SGRM Arlington ;8177954864 r,, j Mr. Tom Brymer City Manager — City of College Station, Texas September 12, 2003 Page 3 ordinance and attempt to determine from the face of the ordinance how the minimum lot width on any proposed development is to be calculated. It appears the ordinance contemplates that the minimum lot width will be based upon the average width of lots on some unknown city block of property. At no place in the ordinance does it specifically set forth where this unknown "block" of property is located so a third party could look at the ordinance and determine what lot width is being required under the ordinance. In fact, when Crux spoke to City staff regarding the plat requirements, City staff indicated it is the one who determines what the width of the lots will be. City staff apparently had some criteria, known only to it, that it utilizes in determining what "block" should be looked at to determine what the width lot size should be, and then such staff uses some formula known only to it, to apply this formula to the contemplated subdivision to arrive at a minimum lot width. There is absolutely no way that a third party can look at the City's ordinance and know what "block" of property provides the base line for establishing the lot width. An ordinance must be clear on its face in order to be enforceable. The present ordinance is a lot of things, but clear on its face is not one of them. For these reasons, we would submit that the ordinance is not enforceable as written. Crux would like to resolve this issue on a friendly basis. The development of the property will be an extremely first rate development, and when the development is through, I sincerely doubt there will be any complaints from anyone about the size of the lots, the size of the homes constructed on it, or the quality of the development. However, the City's unlawful attempt to enforce the ordinance would deprive Crux of 12 additional lots which it could utilize development. This translates to a loss of at least $700,000 to Crux for the additional 12 lo and homes; and a substantially greater loss than this if only the large lots currently mandated by the City on an unlawful basis continue to be unsalable. Although Crux has spoken with numerous potential purchasers of lots in the University Preserve Development, no purchaser has actually purchased a lot because prospective lot buyers consider University Preserve lots larger than desired due to the 113 feet minimum width requirement. To date, Crux's out -of- pocket investment in University Preserve Subdivision (excluding a reasonable investment return) is $1.4 million for land and infrastructure; and Crux is contemplating spending an additional $500,000 to construct two spec homes in the development to try to overcome the large lot -size impediment that has plagued the salability of the subdivision for almost a year. Because Crux needs to start construction of these two homes as quickly possible in order to have "roof tops" in the subdivision for retiring Aggies to look at before the A &M football season ends, a response from the City as soon as possible will be appreciated — preferably within the next two weeks. Review of the above information by your staff to facilitate a timely response to this request should not be a problem; because in addition to Mr. Deason personally visiting with members of .12- 1 -03; 9 :39AM ;SGRM Arlington ;8177954864 yx 6 Mr. Tom Brymer City Manager — City of College Station, Texas September 12, 2003 Page 4 your staff this past February and March and providing written information concerning Crux's reasons for replatting 12 additional lots in University Preserve, Mr. Deason and his local counsel (Charles Ellison) met for more than an hour with key members of your staff members on April 16 regarding these issues. The members of your staff attending the April 16`h meeting were: Glenn Brown (the Assistant City Manager sitting in for you when you were unable to attend the meeting), Harvey Cargill (City Attorney), Roxanne Nemcik (Assistant City Attorney), Kelly Templin (Director Development Services), and Natalie Ruiz (Development Manager). We request that the City approve Crux's subdivision replat as originally presented to the City on January 2, 2002, and subsequently filed April 17, 2003. Please contact me at your earliest convenience so we may discuss these issues. Sincerely, . Fowler LLF /sgb Enclosure c: Switzer L. Deason : 8 1 7 7 9 5 4 8 6 4 # 7 1 '7. - 1 9:39AM;SGRM Arlington . • 1 i . i_____ ji ! . : r -r--- >rr -,---.1 • 41 ::ar .- - - ::-.L.1.. - 3; 7 ' i ii• i . r i 1 . • . - 1 ....---./ - . .1•11111=11141111•11.1IlMallir--... Alm >. - - - -- . - - . . ,.....„...„,-,...,..........-........_-....... \ • • ' • - ..1 " • i . r 11-4,- ; '..... j,..,, 1„....,- , I --.- . . 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Box 10538, Gallop Station, Toxas 77842 .4 r ha: 5: 4 1042001 -003-01 ----.. -IS - 03 20:53 TO:SHANNON GRACEY FROM:9797741156 P37 __._ • ,12- 1 -03; 9 :39AM ;SGRM Arlington ;8177954664 # ,i ,,1 :0a 0.9: 31 5797741155 UNI'%/EFSITY FFESERVE. F'A GE ' MillillirieldringiVeirfirkliMihraiiiIIALW -_-. Cin II mq�lii� op i - ,...r ..�/.. 3 , Ili IV —MO III III Illrfq I 11 1 / 1 1 , ^ � al 1 2 24 25 ' 9 ii ` — C i I ,- REP TS _ . __ _� z P RIVA 'REST, 3 /,- 2 x/ 23 / + 1111 �1 -:!_____J I� u 1 E7 J , ` g - 20 21 i i QT ro / -.-- - , L; �sv4 _ II ( 7 Ic\ 0, 18 ‘ i 1 9 / g i \ \ F /I 1 15 r /.. „ 4,, ., i t _J i) 1 j ri' _� 1 i 7 -) ice' { + 1B t 7 !. - - I S. - -.---'^'=-- _, .,___F 0 : 1 t U , L...—..\- 1 ,.... (I' , , - . ,:-,_., l.., i "..--,-::::. \ -,.. __, -, ,... -"" \ i t \ e.:::-.--0 "El IA I fi .....1-.. y r:: Iv .... c4Y I 1 i 1 1 I \ ... _.._ , 4 711M1.• ... 01.-..,........... s .,.._ ......., i ti f * 1 r - 4 % a ■ — 1 1 i . a ,..._ _ ... ‘ - . A Mill 'Milk - iirrerail PRELIMINARY DEASON SUBDIVISION • e MUNSON /DOMINIK ACCESS FOR TRACTS A, B, & C SCALE: 1' ` 200' /4311r it aav a r�amrrBA /WJ, INC. ea ,00. 2043* 4 7.0. Box 10636, Callow, .us cue , 979416.6914 1111445.4839 P T 4 9 944 1 042001 — 00 — 01 , .......,„ _ GO - 13 -03 26:55 TO:SHANNON GRACEY FROM:9797741156 FCC 1 -03: 9:39AM:SGRM Arlington _�.779E44o4 # _ ;i: :: 1:::' = 03 1.1 9: •:1 9797741156 UNI1iERSITv PRESERVE. F' , ' r ---____--) i 1 i I { iv. 1 1 )• S 1 - L•24 1 V 5 i 1 : f 9 ro .1 ` A.F 0 , „ # 1 a.1 M or - . t a. 1-- , '1 r-- x -, 1 24. 9.3 1 1 !,." - A -L / 1dC s'I i/ I n 1 1 is o i I 1 1 1 I • i4 -1S -03 20:55 TO: SHANNON CRACEY FROt4:9797741156 p3g 9:39AM:SGRM Arlington ;8177954864 # r'L1:= 2ilCr; 0.31 9797741156 LUJIVEk6;ITY F'F:ESERVE. F'PeE . i • ORDINANCE NO. . 2431 AN ORDINANCE AMENDING CHAPTER 12, "ZONING ", OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS, 13Y AMENDING CERTAIN SECTIONS AS SET OUT BELOW; PROVIDING A LIMITED MORATORIUM ON CERTAIN ZONING APPLICATIONS IN SPECIFIC AREAS OF THE CITY; PROVIDING A SEVERABILITY CLAUSE, AND DECLARING A PENALTY. WHEREAS, there are certain area within the City of College Station that are served by aging infrastructure and facilities that are not designed to accommodate increases in the area density or handle additional development; WHEREAS, the existing codes and regulations related to zoning and subdivision regulations do not adequately protect these areas from incompatible land uses and increases in density; and WHEREAS, the City Council needs a reasonable period of time to develop new or revised codes to establish appropriate densities, lot sizes, and development criteria and guidelines for the areas set out in Exhibit "A "; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1 That Chapter 12, "Zoning ", of the Code of Ordinances of the City of College Station, Texas, be amended as set out in Exhibit "A ", attached hereto and made a part of this ordinance for all purposes. PART 2: That if any provisions of any section of this ordinance shall be held to be void or unconstitutional, such holding shall in no way effect the validity of the remaining provisions or sections of this ordinance, which shall remain in full force and effect. PART 3: That any person, firm,, or corporation violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punishable by a fine of not less than Twenty -five Dollars (525.00) nor more than Two Thousand Dollars ($2,000.00). Each day such violation shall continue or be permitted to continue shall be deemed a separate offense. Said Ordinance, being a penal ordinance, becomes effective ten (10) days after its date of passage by the City Council, as provided by Section 35 of the Charter of the City of College Station_ uigroup lcgal/tu/ordinance/zonemo,12.doc 01'14/00 Go^ -13 -03 20:57 TO:SHANNON ORACEY FROM:9797741156 P -3 4 s 1-03; 9:39AM;SGRM Arlington ;8177954864 4 11,' :_c::10,..20E13 09: 31 9797741156 UNIVERSITY PRESERVE. PAGE • ORDINANCE NO. 243]. PAGE 2 PASSED, ADOPTED and APPROVED this 27th day ofJanuary, 2000. 4Plik A.— — L M ILHANEY, Mayor ATTEST: CONNIE HOOKS, City Secretary APPROVED: City Attomex cdrouptlegaUhaordinoncefrAuseinordloc 01/14100 03 10-03 20:58 TO:SHANNON GRACEY FROM:9797741156 P45 -_ o:_M:_ PM AriIn.7 tore 1:: ii 1= u9: A. 79774115E UI IVEFE.IT`r PPE'.EP••.:F. ORDINANCE NO.' 2431 3egti EXI - IIBI T "A" Thar Chapter 12, "Zoning ", of the Code of Ordinances of the City of College Station. Texas, in . 11m -by arnendertfiyacieinga new Sectioe - ' 23. MORATORIUM ON CERTAIN APPLICATIONS In addition to the other provisions of this ordinance, there is hereby established a moratorium on any zone change applications, variance applications, special exception applications and conditional use permit applications for any tract or parcel of land currently zoned for single family residential uses and located within the areas described in this section. No application for a zone change, variance, special exception or conditional use for any tract or parcel of land currently zoned for single family residential uses for the areas set out in Section 23.2 shall be accepted by the City of College Station from the date this ordinance becomes effective through August 15,.2000_ 23.1 EXPIRATION OF SECTION This section and the moratorium on applications hereby established shall expire on August 15, 23.2 MORITORIUM AREAS The moratorium on applications established by this section shall be limited to the following. areas. The moratorium on applications established by this section shall be limited to the following areas: Area A- An area bounded by Texas Avenue, Holleman Drive, Glade Avenue, Southwest Parkway, Wellborn Road and George Bush Drive and reflected in Illustration A below. Illustration A. • V` V / • ' I'r ., • o roupl tegat/hcordinancCJzonemort2.doc 01!14 /00 t■> 10 03 20:58 TO :SHANNON GRACEY FROM:9797741156 P4E 39AM:SGRM Ar I ngton 1779E4e64 J . 9797741156 1_1111 VERS I TV PRESERVE. ORDINANCE NO. 241 I PAGE 4 Area B- An area bounded by Texas Avenue, University Drive, Tarrow Stra-1., • . , Drive,--the -Earl Rudder Ffeeway and Haryty Road and reflected in Illustration B below. Illustration B • , ' • ! • • :.••• . • , • •-• <1, • • 4 •.' \\■' . . . • • . • • . . - • • e • • o/grouFdlegenc/ordinancatoncmora.doc 1/14/00 (B-18 -03 20:58 TO:SHANNON GRACEY FROM:9797741156 )47 1 -03: _ _9AM:SGRM Arlington ;17795434 = .I... i:_:/12.111_1 I1CI: -:1 9797741156 LEI JI FF'E'= ,EF -,E • .5:U2 '37976414116 i_L "1r:5 JE,;ELoPMa:NT SEP Pi-:,;E ..2 , 7 2- ORDINANCE NO. 2492 AN ORDINANCE _AMENDING CHAPTER 9, 'SUBDIVISIONS" OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS, BY ADDING CERTAIN SECTIONS AS SET OUT BELOW; PROVIDING A SEVERABILITY CLAUSE, DECLARING A PENALTY AND PROVIDING AN EFFECTIVE DATE. WHEREAS, there are certain r as within the City of College Statirm that a e strved by azing infrastructure and facilities that are not designed to accommodate increases in the area density or 6u additional development; WHEREAS, the existing codes and regulations related to subdivision, platting and replotting do nor adequately protect these areas from incompatible increases in density; and WHEREAS, the city Council desires to ensure that dvvelopmcnt end redevelopment within racier subdivisions does not exceed the capacity of existing infrastkucturea; now, therefore, )3l� fl ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1 Cbzpter 9, "Subdivisions", of the Code of Ordinances of the City of College Station, Texas, be amended as set out in Exhibit "A", attached hereto and made a part of this ordinance for all purjc ses. PART 2; That if any provisions of any section of this ordinanc shall be hold to be void or unconstitutional, such holding shall in no way effect the validity of the remaining provisions or sections of this ordinance, which shall retrain in full form and effect. PART 3: That any person, fun% or corporation violating any of the provision$ of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punishable by a fine of not less than Twenty - five h5ellarrs ($25.00) nor more than Two Thousand Dollars ( $2,000.OD). Each day such violation shall continue or he permitted to continue shall be deemed a separate offense. Said Octlixratit.c. being penal ordinance, becomes cffeaive ten (t0) days after its dare of passage by the City Council, as provided by Section 35 of the Charter of the City of College Station. • 0S-1S-03 2 0:59 TO:SHANNON GRACEY FROM:9797741156 F4'3 12- 1-03; 9: 39AM; SGRM Ar I I ngton ;8177954864 # 15, 22, •W18/2003 09:31 9797741156 UNIVERSITY PRESERVE. PAGE 3:125 15:02 979764:3436 CDCS DEVELOPKIP SER ORDINANCE rage 2 _2. 47 ,t2 PASSED. ADOPTED and APPROVED this filt day of FOn.lary 2D0 APPROVED: 4 ?41C1 - Lynn Mcilhaney ATTEST; • City Secretary Connic mks APPROVED; _ C Atto r-41421 . . • 03 13-03 21:00 TO:SHANNON GRACEY FROM:9797741156 PSO 1 -03; 9= 39AM;SGRM Arlington ;8177954864 At 16, + ;/ ] : = :i 2 €1r_i 09: 31 9797741196 UNIVERSITY PRESERVE. PAGE _ u. V_„19O:i 15: 02 97'37643436 COCE DEVELUF'METIT SEP PAGE. i =_, ORDINANCE NO. 7497 7?agC 3 EX1-11$IT "A" That Chapter 9, "Subdivisions ", of the Cutle of Ordinances of the City n f College Station is hereby amended by Wooing A riew Section 18 to read as Eoklowe: SFcTION 18: c�Lri A PLATTING RFSIDENTYAL SUBDIVISIONS pTi-UN 18 - A. in addition to the other provisions of this ordinance, no application for Alit, scplat, vacating and zesubdividinlg plat or other plat Intended to ptovlde for the reeubMivixion (If an existing lot or lots in a residential subdivision created prior to July 15, 1970, may be considered for approval unless: 18-A.1 The plat does oat create an additional lot or building plot. 1 S-A.2 A plat whiich does create ark additional kit or building plot must meet or exceed the average width of the lots along the street frontage, for all loin in the block and • contain. at least 8,500 square feet of space for each dwelling unit. For the purpose of this section, a lot shall be defined to include the lot, lots and / rjr portions of lots that have bean catnbined and used as a residential plot, as 9f the effective date of this ordinance. 18-A.3 This moratorium on an application for a change to a plat shall apply to the following itteas: Area A- An area bounded by Texas Avenue Holleman Drive, Glade Avenue, Sovthwweat Parkway, Wellbc►xn Road and George Bush Drive and rcilected in l lustratiion A. below. Illustration A /. - "", ` 1 o ms 's! , r y ham ` •; ter/ "`^ ts, ` • \ • f ■ ,o \ O:grysp.?cziamsrsoawchapaeta dnr. a uswoi E8 -18-93 21:AG TO:SHANNON GRACEY FROM : R51 .'12- 1-03; 9:39AM:SGRM Arlington ;8177954864 # 17 1 ::-_-:." 201 09:31 9797741156 UNIVERSITY PPESER'v'E . PA!SE `........ ..... ._ '.,-;:.'.. 'kk 15 : 82 $797643496 - ---_._ .._ COCS DEVELOPMENT SER 7. I./.74 ORDINANCE NO. _ 2492 Pape 4 Area B- An area bounded by Tacos Avenue, 'University Drive, ?arrow Street, Liucoin Avenue, University Drive, the Earl Rudder Freeway and Harvey Road and reflected in illustration B below. Illustration B fl—..-As,„,/ 4 . 1 .....„:0,,, `= ',;, -- ,.---- ./„.... , , \\ .. .> .. • ‹. N) s' .1 ›.. . N .. 4 ..",. , s", .. % ..., 7.-„v,' - c-• , , , , ... 'sii. / \ NV . 7" :‘.. .:$.; ;-!..„ . )S- ... • l'--., - :..• i\..,. -e_ ; , i.7 "--"":.,../-,..*--.> y , ;•----,--‘‘ ...)'-',' • „N •.. , ‘.- / ;• .., ' ';' • ...:./ .- A , "i— , 18 rapkviun tdSecriga-Iff This seetiot erk-i cnbilections . ... I.' t on lanuary 1, 2002. C/L4•41«exickerpterair.doe 0145117.1 U8-18-03 21:00 TO:SHANNON GRACEY FROM:9797741156 Ph2 •12- 1 - 03; 9:39AM;SGRM Arrington ;8i77954864 u ,ri.. _ `'3. 1: 3.200.3 09: 9797741156 UNIVERSITi' PFESERVE. Pr 5'5 S v' ORDINANCE NO. 2544 AN ORDINANCE AMENDING CHAPTER 9,"SUBDIVISIONS" OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS, BY ADDING CERTAIN SECTIONS AS SET OUT BELOW, PROVIDING A SEVERABILITY CLAUSE, DECLARING A PENALTY, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, there are certain areas within the City of College Station that are served by aging infrastructure and facilities that are not designed to accommodate increases in the area density or handle additional development: WHEREAS, the existing codes and regulations related to subdivision, platting and replatting, do not adequately protect these areas from incompatible increases in density; and WHEREAS, the City Council desires to ensure that development and redevelopment within .older subdivisions does not exceed the capacity of existing infrastructure; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: Chapter 9, "Subdivisions ", of the Code of Ordinances of the City of College Station, Texas, be amended as set out in Exhibit "A ", attached hereto and made a part of this ordinance for all purposes, PART 2: That if any provisions of any section of this ordinance shall be held to be void or unconstitutional, such holding shall in no way effect the validity of the remaining provisions or sections of this ordinance, which shall remain in full force and effect. PART 2: That any person, firm or corporation violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not less than Twenty -five dollars ($25.00) nor more than Two Thousand Dollars ($2000.00). Each day such violation shall continue or be permitted to continue, shall be deemed a separate offense. Said Ordinance, being a penal ordinance, becomes effective ten (10) days after its date of passage by the City Council, as provided by Section 35 of the Charter of the City of College Station. Rev. 6/01 0-1 c.;; 1U -93 21:92 TO:SHANNON CRACEV FROM: P55 -03; 9:394M:SGRM Arlington 979; 41156 --S • SECTION 18: - ...... -PLATTFNG'ANO REPLATT -IN WIT'd- 41N-OLDER RESIDENTIAL SUBDIVISIONS 18 -A. This section applies to all property in which any portion of that property meets the following criteria: 18 -A.1 Any portion of the property Is currently zoned or developed for single family residential uses as of January 1, 2002 with the exception of NG -1, NG -2 and NG - zoning districts; and, 18 -A -2 The subject property Is part of a lot or building plot that was created prior to July 15, 1970. This also includes Tots that may have been vacated or replatted after July 15, 1970 but where the original plat predates July 15, 1970. 18 -B. in addition to the other provisions of this ordinance, no plat, replat, vacating and resubdividing plat or other plat intended to provide for the resubdivision of an existing lot or lots in a residential subdivision may be approved unless: 18 -B.1 The plat does not create an additional lot or building plot. 18 - B.2 A plat which does create an additional lot or building plot must meet or exceed the average width of the lots along the street frontage, for all lots in the block and contain at least 6,500 square feet of space for each dwelling unit. • For the purpose of this section, a lot shall be defined to include the tot, lots and/or portions of lots that have been combined and used as a residential plot, as of the effective date of this ordinance. 18 -C. It is the applicant's responsibility to provide documentation during the application process regarding the original plat in which the lot was created. 10-03 21:42 TO:SHANNON GRACEY FROM:9797741156 P5(7. s 12— 1 -03; 9:39AM;SGRM Arlington ;8177954864 tt20; 2€1C•13 09: 31 9797741156 UNIVERSITY PRESERVE. Pi:6E . NS . _ . . 3, ./ox i yh c�r!"rYl�f PASSED, ADOPTED and APPROVE • thisth day of January y J uary 2002. APPROVED: dith AA Lynn r Ilhancy, Mayor ATTEST: / orinie Hooks, ity ecretary APPROVED: City Attorne 08 21:03 TO:SHANNON GRACEY FROM:9T97741156 P57 ''2- 1 -03; 9 : :SGRM Arling ton ;8177954864 g 2 „ : _: 1 : .7 09: 31 9797741156 UNIVERSITY PRESERVE. Jul 30 03 04:5`.ip RBEI l'= :44 F, ON: TEMy ISac;k $79 -764 -3896 Pagc 1 3j • FACSIMILE COVER PAGE pate: 1/4/ T ime: :42 :26 Page`:: 3 To: bale Browne Company: Ash 6i Browne Engineering, Inc Fax #: &46 -8914 From: Tammy Macik Title: Secretary Company: City of Collegt Station Address: 1101 Texas Avenue College Station , TX 77842 Fax ;tF. 979- 764 -3496 Voice 0 979 -764 -3570 Message; Good Morning! Faxed is the Section 18 of the Subdivision Regulation Jessica Jimmerson requested I send to you. It is in regards to the Platting and Replotting within older residentiol subdivisions. If you have any questions, please let us know. Thanks, Tammy Macik 08 -18 -03 20:56 TO: SHANNON GRACEY FROM :9797741156 P4l - ' -O 9:39AM: SGPM Ar;ingtor; -c _ . 1'1:10 RS ilU 31 97c17741156 LINT? 1 30 ^3 U 4: 56p AHt l E _IT`r` PF'ESER' -rL " croft: 1., ix MaaA 517 ^?E� 3E�o Pace SECTION 18. PLATTING AND REPLATTINGWITH.N O_DER RESIDENTIAL SUBDIVISIONS - ,? -A in adcd,on '! % rhi Other prov'sr•ns of this rrtl,nance no applrcaloon to p•at reGrat, vec?.t,■ and resubdividing prat or other pest 'nte- de i to provide for tho resubdr:ns cr of en r cis•rng ioi ur uts ins ' Pa:aent al s, vision ;.+eated prior 'o July 15, 1970, rnav t)H con; d_'ed br ■DF`rOval unle6s. 8 .A 1 Tile pint ,Jrhes not create an additional bt or butdln9 plot if - 1 a prat which does crea,Ie an a lot or budding plc): mus! - new or exceed the average widtl cfthe lots along thM street frontage, '' >r aft ;cts rn the block end contain et least 8,500 equare feet of space for eacrt cwel np unit, For the purpose of this section, a'ct shall be detned to rncluna lne lo! is analogy p3'1rrns of lots ['tat have been combined and usr,+c as 3 res de - '3bl picot, as or the nflec!r.'e date of this ordinance P - A I hie Moratorium on an applicati0r for a change to a oat Shad app v SO the toilowrng areas Area A - .A 9r.41 bounded by Texas Avenue Holiernan 0rre. Avenue, $outh Prxkvvay, Wellborn Road aid ,Gorge 9 i n ()we and reflected ire :i Ustralion A beiow IIILL.roti.�.•. n • • '• J•54 So, trC r -I ° -03 20:57 TO :SHANNON GRACEV FROM :9797741156 P42 . 1-03; 9: 39AM;SGRM Ar I I ngton ; 8 1 77954864 , u :s1:-;/ (19::31 9797741155 UNIVERSITY PRESERVE:. iu] 30 03 0456p RBEI 979-04b-uwi^ R.17 e:;f141:: 139• Fru,: tuts. gati.k. 9n-751-?89i Fige f Area 9- An area bounded by Texas Avenue. 1..r.iyersity Tarro Street. Lanoin AvtrIUC, l.1 CrivE. the Ear: Rudoc.tr Freeway and Harvey Road and !elected to ilurj ir P, below. • ,r ‘ ' • • • " • • . • •••, 18-e. EXptraridrt Sgotion 18 Thia section and sasec!tons shalt expire On iariuy 1, 2302 pnlina.rm• N. 24 1 • 9-ab RA-. sot t:I'lf: 20:57 TO:SHANNON GRACEY FROM:9797741156 v43 ci The Ci of College Station Texas Embracing the Past, Exploring the Future. Legal Department P.O. Box 9960 • 1101 Texas Avenue • College Station, TX 77842 • (979) 764 -3507 • FAX: (979) 764 -3481 www.ci.college - station.tx.us November 25, 2003 By Facsimile (817) 795 -4864 & Regular Mail Mr. Larry L. Fowler SHANNON, GRACEY, RATLIFF & MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 Re: Crux Financial Services, Inc. Dear Mr. Fowler: This letter will confirm my receipt of your November 24, 2003, letter and attached DRAFT Petition in the above - referenced matter. In your letter you indicate that you previously contacted me by correspondence dated September 9, 2003. Please be advised that neither I nor my staff received this previous letter. I understand that College Station's City Manager, Tom Brymer, did receive a letter from you dated September 12, 2003, regarding this matter. Please forward to me at your earliest convenience: (1) a copy of the September 9, 2003, letter; (2) a copy of the September 12, 2003, letter to Tom Brymer; (3) any enclosures to this correspondence; and (4) any other information you believe pertinent to your client's claim. Following an investigation into your claim by City staff, I will be glad to discuss with you the City's position. Thank you in advance for your cooperation in resolving these issues. Sincerely, 2 Harvey Cargill, Jr. City Attorney cc: Tom Brymer fi. ..xw, Home of Texas A &M University , . O:ILiiigailon Binders -Fil d etf , �,,,,d� „cr f d t. fi and Museum Y LAW OFFICES SHANNON, GRACEY, RATLIFF & MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 (817)795 -4866 Telecopier (817)795 -4864 Larry L. Fowler Ifowler @shannongracey.com (817) 299-2841 14623 -1 November 24, 2003 VIA FEDERAL EXPRESS Harvey Cargill City Attorney's Office City of College Station, Texas P. O. Box 9960 NOV 2 Z 2003 1101 Texas Avenue College Station, TX 77840 -9960 Re: Crux Financial Services, Inc. Dear Mr. Cargill: This office represents Crux Financial Services, Inc. ( "Financial "). By letter dated September 9, 2003, I contacted you regarding Financial's contemplated development of approximately 11.5 acres in College Station, Texas. I asked that you contact me regarding the contents of that letter. To date, I have received no response. Accordingly, enclosed with this letter please find a Petition which I anticipate will be filed on behalf of Financial within the next week. I am contacting you prior to filing the Petition to see if, perhaps, the failure to respond to my previous correspondence was inadvertent and it will not be necessary for Financial to file the lawsuit but instead, will be able to resolve this matter with the City of College Station without the necessity of litigation. Accordingly, if College Station desires to resolve this matter without the necessity of litigation, I would ask that you contact me by December 3, 2003, so we may discuss the contents of my previous letter and the enclosed Petition. If I do not hear from you by such time, I will assume that College Station does not desire to discuss this matter and Financial will proceed accordingly. Sincerely, e A t- owler LLF /sgb Enclosure c: Switzer L. Deason No. CRUX FINANCIAL SERVICES, INC. § IN THE DISTRICT COURT v. § JUDICIAL DISTRICT CITY OF COLLEGE STATION, TEXAS § BRAZOS COUNTY, TEXAS PLAINTIFF'S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Comes now Plaintiff Crux Financial Services, Inc. ( "Crux "), and in support of this, its Original Petition, would show as follows: 1. Pursuant to T.R.C.P. 109.1, Plaintiff affirmatively pleads that T.R.C.P. 190.2, Level 3 Discovery Control Plan, will control discovery of the above - entitled case. 2. Plaintiff is a Texas corporation. 3.. Defendant The City of College Station, Texas (the "City "), is a Texas home rule city which may be served with citation by delivering same to Thomas E. Brymer, the City Manager, at 1101 Texas Avenue South, College Station, Brazos County, Texas 77840. 4. This Court has jurisdiction over this action as the amount in controversy is within in this Court's jurisdictional limits. 5. Venue is proper in Brazos County, Texas, as all, or substantially all, of the events giving rise to Plaintiff's cause of action occurred in Brazos County, Texas. Additionally, Defendant is located, and has its principal place of business in Brazos County, Texas. PLAINTIFF'S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page I 6. Plaintiff is the owner of approximately 11.5 acres of property located in College Station, Texas. Such property is more particularly described on Exhibit A attached hereto. This action relates to Plaintiff's attempt to develop such property. Such property is known as the University Preserve Subdivision. 7. On January 2, 2002, Plaintiff met with numerous representatives of Defendant and submitted a preliminary plat for the development of the property. This preliminary plat provided for the subdivision of the property into lots with a width of less than 113'. 8. Defendant refused to accept Plaintiff's preliminary plat of the subject property. Defendant informed Plaintiff at that meeting and in subsequent written communications that there was a moratorium in place which prevented Plaintiff from developing the property with lots less than 113' in width. 9. In truth, there was no such moratorium in place and Defendant intentionally misled Plaintiff with regard to the status of the city's requirements which existed as of January 2, 2002, for the development of the property. In actuality, as of January 2, 2002, the City's development ordinances only required that residential lots be at least 50 feet in width. 10. Following the January 2, 2002 meeting with Plaintiff, and in order to prevent Plaintiff from developing the property as detailed in the preliminary plat with lots less than 113' in width, Defendant, on January 24, 2002, adopted an ordinance which purported to amend Section 18 of Chapter 9 Subdivision, of the Code of Ordinances of the City of College Station, Texas, relating to the platting and replatting within older residential subdivisions. PLAINTIFF'S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 2 11. Defendant now contends that pursuant to the terms of the ordinance referred to above, Plaintiff cannot develop the property unless the lots are at least 113' in width. 12. At the time Defendant adopted the ordinance which requires the larger lot sizes, Plaintiff had a vested right, pursuant to TEXAS LOCAL GOVERNMENT CODE § 245.002, in the right to develop the subject property pursuant to the rules and regulations which were in place on January 2, 2002, when Plaintiff presented its initial preliminary plat to Defendant. 13. If Plaintiff is required to comply with the ordinance adopted by Defendant on January 24, 2002, Plaintiff will be deprived of 12 additional lots which it could utilize for additional development within the subdivision. 14. After January 24, 2002, Plaintiff submitted a plat to Defendant in furtherance of his attempted development of the property in compliance with the preliminary plat which he submitted to Defendant on January 2, 2002. 15. Defendant refused to approve the subject plat but instead, indicated that Plaintiff was required to comply with the ordinance which was adopted on January 24, 2002. 16. Defendant's adoption of the ordinance constitutes a taking of Plaintiff's property. As a direct and proximate result of Defendant's taking, Plaintiff has been damaged in an amount of at least $700,000. PLAINTIFF'S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 3 . 1 REQUEST FOR DISCLOSURE 17. Pursuant to TEX. R. Civ. P. 194, you are requested to disclose, within 30 days of service of this request, the information or material described in Rule 194.2(a) -(k). Wherefore, Plaintiff prays that Defendant be cited to appear and answer herein, that on final trial hereof Plaintiff recover damages against Defendant in an amount within this Court's minimum jurisdictional limits, plus an order requiring Defendant to approve the plat which was submitted to Defendant on January 2, 2002, plus prejudgment and postjudgment interest, cost of court, and such other and further relief as to which it may show itself justly entitled to receive. Respectfully submitted, LARRY L. FOWLER, JR. 07321900 SHANNON, GRACEY, RATLIFF & MILLER, LLP 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 (817) 795 -4866 (817) 795 -4864 (FAX) M:\fowlel\DEASON,S WITZER_College Station\Pleadings\POP.wpd PLAINTIFF'S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 4 QLI L/O UNIVERSITY PRESERVE TIMELINE • February 6, 2004 — Deadline to receive confirmation from Mr. Deason regarding this timeline. • February 9, 2004 — February 13, 2004 — Staff prepares an ordinance amendment to the Subdivision Regulations pertaining to Section 18 that exempts the subject property. The deadline for submitting the amendment and associated staff report is February 13, 2004. • February 23, 2004 by 10:00 a.m. — Mr. Deason submits a complete replat application for the March 18, 2004 Planning & Zoning Commission meeting. • February 26, 2004 — City Council considers the ordinance amendment to the Subdivision Regulations pertaining to Section 18. • February 27, 2004 — City staff prepares legal advertisements and notices for the replat to be considered by the Planning & Zoning Commission on March 18, 2004. • March 2, 2004 — City staff returns comments to Mr. Deason on the replat application submitted on February 23, 2004. The advertisement in The Eagle is published and notification letters to surrounding property owners are mailed. • March 8, 2004 by 10:00 a.m. — Mr. Deason submits a revised replat that addresses the staff comments returned on March 2, 2004 along with a mylar of the replat with all required signatures from the owner and surveyor. • March 18, 2004 — Planning & Zoning Commission holds a public hearing and considers the replat. If the replat meets all minimum standards, staff will recommend approval. • March 19, 2004 — If approved by the Commission on March 18, 2004, the replat is filed with the County. pl,)4)Ls 3.qU rh bci 2 . -� DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS UNIVERSITY PRESERVE SUBDIVISION TABLE OF CONTENTS ARTICLE 1. CONCEPTS AND DEFINITIONS Page 1 1.01 "Amended Declaration" Page 2 1.02 "Annual Assessment" Page 2 1.03 "Architectural Review Committee" Page 2 1.04 "Articles" Page 2 1.05 "Assessable Property" Page 2 1.06 "Association" Page 2 1.07 "Board" Page 2 1.08 "Bylaws" Page 2 1.09 "Central Appraisal District" Page 2 1.10 "Common Properties" Page 2 1.11 "Covenants" Page 3 1.12 "Declarant" Page 3 1.13 "Declaration" Page 3 1.14 "Deed" Page 3 1.15 "Design Guidelines" Page 3 1.16 "Development Period" Page 3 1.17 "Dwelling Unit" Page 3 1.18 "Easement Area" Page 3 1.19 "Exempt Property" Page 4 1.20 "Fiscal Year" Page 4 1.21 "Homebuiider" Page 4 1.22 "Improvement" Page 4 1.23 "Lot" Page 4 1.24 "Member" Page 4 1.25 "Owner" Page 4 1.26 "Payment and Performance Lien" Page 4 1.27 "Property" Page 4 1.28 "Resident" Page 4 1.29 "Structure" Page 5 1.30 "Subdivision" Page 5 1.31 "Taxing Authorities" Page 5 1.32 "Trustee" Page 5 1.33 "Zoning Ordinance" Page 5 ARTICLE 2 PROPERTY SUBJECT TO THIS DECLARATION Page 5 2.01 Existing Property. Page 5 2.02 Additions to Existing Property. Page 5 ARTICLE 3 MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION Page 6 3.01 Membership. Page 6 3.02 Voting Rights. Page 6 3.03 Board of Directors. Page 7 3.04 Notice and Voting Procedures. Page 7 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page i ARTICLE 4 RIGHTS OF ENJOYMENT IN THE COMMON PROPERTIES Page 7 4.01 Easement. Page 7 4.02 Extent of Members' Easements. Page 7 4.03 Restricted Actions by Members. Page 8 4.04 Damage to the Common Properties. Page 8 4.05 Rules of the Board. Page 8 4.06 Use of Common Properties. Page 8 4.07 User Fees and Charges. Page 9 4.08 Encroachments. Page 9 4.09 Private Streets. Page 9 4.10 Conveyance to City of College Station. Page 9 ARTICLE 5 COVENANTS FOR ASSESSMENTS Page 10 5.01 Creation of the Lien and Personal Obligation of Assessments. Page 10 5.02 Purposes of Assessments. Page 10 5.03 Basis and Amount of Annual Assessments. Page 11 5.04 Special Group Assessments. Page 11 5.05 Rate of Assessments. Page 11 5.06 Date of Commencement of Assessments; Due Dates. Page 11 5.07 Duties of the Board of Directors with Respect to Assessments. Page 11 5.08 Effect of Non - Payment of Assessment; the Personal Obligation of the Owner; the Lien; and Remedies of Association. Page 12 5.09 Power of Sate. Page 13 5.10 Rights of City of College Station. Page 14 5.11 Subordination of the Lien to Mortgages. Page 15 5.12 Exempt Property. Page 15 ARTICLE 6 GENERAL POWERS AND DUTIES OF THE BOARD OF DIRECTORS OF THE ASSOCIATION Page 16 6.01 Powers and Duties. Page 16 6.02 Board Powers. Page 17 6.03 Maintenance Contracts. Page 17 6.04 Liability Limitations. Page 18 6.05 Reserve Funds. Page 18 ARTICLE 7 INSURANCE; REPAIR; RESTORATION; COMMUNITY SERVICES ARRANGEMENTS Page 18 7.01 Right to Purchase Insurance. Page 18 7.02 Insurance and Condemnation Proceeds. Page 18 7.03 Insufficient Proceeds. Page 19 7.04 Community Service Arrangements. Page 19 ARTICLE 8 ARCHITECTURAL CONTROL COMMITTEE Page 20 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page Mi 8.01 Architectural Review Committee. Page 20 8.02 ARC Jurisdiction. Page 20 8.03 Design Guidelines. Page 21 8.04 Preliminary and Final Plan Submissions. Page 22 8.05 General. Page 23 ARTICLE 9 GENERAL RESTRICTIONS Page 24 9.01 Construction of Improvements. Page 24 9.02 Antennae and Signals. Page 24 9.03 Insurance Rates. Page 24 9.04 Subdividing. Page 24 9.05 Signs. Page 24 9.06 Rubbish and Debris. Page 25 9.07 Noise. Page 25 9.08 Lighting. Page 25 9.09 Nuisance and Lateral Support. Page 25 9.10 Repair of Improvements. Page 25 9.11 Alteration or Removal of Improvements. Page 25 9.12 Roofing Materials. Page 25 9.13 Solar Equipment. Page 25 9.14 Driveway. Page 25 9.15 Tanks. Page 25 9.16 Underground Utility Lines. Page 25 9.17 Drainage. Page 26 9.18 Hazardous Activities. Page 26 9.19 Mining and Drilling. Page 26 9.20 Machinery and Equipment. Page 26 9.21 Temporary Structures. Page 26 9.22 Unsightly Articles; Vehicles; Number of Occupants. Page 26 9.23 Mobile Homes, Travel Trailers, Recreational Vehicles. Page 27 9.24 Fences. Page 27 9.25 Animals - Household Pets. Page 27 9.26 Landscape Design. Page 27 9.27 Construction and Sales Activities. Page 28 9.28 Mailboxes. Page 28 9.29 Sight Lines. Page 28 9.30 Garage Conversions. Page 28 9.31 Use of Common Properties. Page 28 9.32 Compliance with Provisions of this Declaration. Page 28 9.33 No Warranty of Enforceability. Page 28 ARTICLE 10 RESIDENTIAL RESTRICTIONS Page 29 10.01 Residential Use. Page 29 10.02 Garages and Garage Orientation. Page 29 10.03 Outbuildings. Page 29 10.04 Building Materials; Dwelling Size. Page 29 10.05 Construction in Place. Page 29 10.06 Set -back Requirements. Page 29 10.07 Landscaping; Maintenance. Page 29 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION PageUi ARTICLE 11 EASEMENTS Page 30 11.01 Reserved Easements. Page 30 11.02 Installation and Maintenance. Page 31 11.03 Surface Areas. Page 31 11.04 Drainage Easements. Page 31 11.05 Blanket Easement. Page 31 ARTICLE 12 REGISTRATION Page 31 12.01 Registration with the Association. Page 31 ARTICLE 13 GENERAL PROVISIONS Page 32 13.01 Power of Attorney. Page 32 13.02 Further Development. Page 32 13.03 Duration. Page 33 13.04 Amendments. Page 33 13.05 Enforcement. Page 33 13.06 Validity. Page 33 13.07 Proposals of Declarant. Page 34 13.08 Service Mark. Page 34 13.09 Headings. Page 34 13.10 Notices to Resident /Member /Owner. Page 34 13.11 Notices to Mortgagees. Page 34 13.12 Disputes. Page 34 13.13 Enforcement and Nonwaiver. Page 34 13.14 Assignment by Declarant. Page 35 13.15 Exemption of Declarant. Page 35 13.16 Interpretation. Page 35 13.17 Construction. Page 35 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Pagell# DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS UNIVERSITY PRESERVE SUBDIVISION This DECLARATION OF CONVENANTS, CONDITIONS AND RESTRICTIONS of University Preserve Subdivision, is made and effective as of the day of 2002, by Crux Financial Services, Inc., (sometimes referred to herein as the "Declarant "): PREAM BLE Declarant is the owner and developer of certain residential Lots within a 14.009 acre tract of land now commonly known and described as the University Preserve Subdivision, (which lots are more particularly described within Exhibit "A" attached hereto) (the "Property "). Declarant proposes to establish and implement plans for residential living, recreation, aesthetic and quality - of -life considerations. The purposes of this Declaration is to: protect the Declarant and the Owners against inappropriate development and use of Lots within the Subdivision; utilize private streets; assure compatibility of design of improvements within the Subdivision; secure and preserve sufficient setbacks and space between buildings so as to create an aesthetically pleasing environment; provide for landscaping of common areas and the maintenance thereof; and in general to encourage construction of attractive, quality, permanent improvements that will promote the general welfare of the Declarant and the Owners. Declarant desires to impose these restrictions on the Property now and yet retain reasonable flexibility to respond to changing or unforeseen circumstances so as to guide, control and maintain the quality and distinction of the University Preserve Subdivision project. The restrictive covenants hereinbelow will also comply with the requirements of the City of College Station, Texas and those of the utility companies providing service to University Preserve Subdivision to better ensure the care of maintenance of the common areas and amenities within University Preserve Subdivision and to preserve the best interests of the Declarant and the Owners and Residents of University Preserve Subdivision after com pletion of all development and construction therein. The University Preserve Owners Association, Inc. (the "Association ") has been or will be chartered as a non - profit Texas corporation to assist in the ownership, management, use and care of the various common areas within University Preserve Subdivision and to assist in the administration and enforcement of the covenants, conditions, restrictions, easements, charges and liens set forth with this Declaration. DECLARATION The Declarant hereby declares that the University Preserve Subdivision residential lots described within Exhibit "A" attached hereto, and such phases or additions hereto as may hereafter be made pursuant to Article 2 hereof, are and shall be owned, held, mortgaged, transferred, sold, conveyed and occupied subject to this Declaration and the covenants, conditions, restrictions, easements, charges and liens (sometimes collectively referred to hereinafter as "the Covenants ") set forth in this Declaration. ARTICLE 1. CONCEPTS AND DEFINITIONS The following words, when used in this Declaration or in any amended or supplementary declarations (unless the context shall otherwise clearly indicate or prohibit), shall have the following respective concepts and meanings: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 1 1.01 "Amended Declaration" shall mean and refer to each and every instrument recorded in the Official Records of Brazos County, Texas which amends, supplements, modifies, clarifies or restates some or all of the terms and provisions of this Declaration. 1.02 "Annual Assessment" shall have the meaning specified in Article 5 below. 1.03 "Architectural Review Committee" (sometimes referred to herein as the "ARC ") shall mean and refer to the committee which is described in Article ___ of this Declaration. 1.04 "Articles" shall mean and refer to the Articles of Incorporation (and a amendments thereto and restatements thereof) of the Association of file in the Office of the Secretary of State of the State of Texas, Austin, Texas. 1.05 "Assessable Property" shall mean and refer to each and every lot, parcel and tract within the entire property which: (i) the Declarant has subjected to and imposed upon a set of restrictive covenants calling for the payment of an Annual Assessment to the Association; (ii) may have been or will be given a separately identifiable tax or parcel number by the Central Appraisal District ( "CAD ") or a similar governmental agency; (iii) is not designated an "open space" or otherwise a portion of the Common Properties. The Declarant proposes to cause each residential Lot within the Property to constitute an Assessable Property. However, the Declarant reserves the right and discretion to include or exclude any non - residential Lot from the concept of "Assessable Property" and /or to prescribe a different assessment and /or valuation scheme(s) for any non - residential Lot which is subjected to covenants which require the payment of assessments to the Association. 1.06 "Association" shall mean and refer to University Preserve Owners Association, Inc., a non - profit Texas corporation which has the power, duty and responsibility of maintaining and administering certain portions of the Property and all of the Common Properties, administering and enforcing the Covenants and otherwise maintaining and enhancing the quality of life within University Preserve Subdivision. 1.07 "Board" shall mean and refer to the Board of Directors of the Association. 1.08 "Bylaws" shall mean and refer to the Bylaws of the Association, as adapted and amended from time to time in accordance with the provisions of the Texas Non - Profit Corporation Act and this Declaration. 1.09 "Central Appraisal District" ( "CAD ") shall mean and refer to the governmental and /or quasi -governmental agency(ies) (including without limitation the Central Appraisal District of Brazos County) established in accordance with Texas Property Tax Code Section 6.01 et seq. (and its successor and assigns as such law may be amended from time to time) or other similar statute which has, as one of its purposes and functions, the establishment of an assessed valuation and /or fair market value for various lots, parcels and tracts of land in Brazos County, Texas. 1.10 "Common Properties" shall mean and refer to any and all areas of land within the Property which are known, described or designated as common areas, private streets, gate house and gate apparatus, parks, recreational easements, stormwater detention areas, floodway easement areas, lakes, ponds, dams, perimeter fences and columns, off -site monuments and directional signs, landscape easement, greenbelts, open spaces, paths and trails, and the like including without limitation those shown on any recorded subdivision plat of portions of the Property as well as those not shown on a recorded subdivision plat but which are intended for or devoted to the common use and enjoyment of the Members of the Association, together with any DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 2 and all improvements that are now or that may hereafter be constructed thereon. The concept of Common Properties will also include: (i) any and all public right -of -way lands within the Property for which the City of College Station has required that the Declarant and /or the Association expend private, non - reimbursable time and monies to care for and maintain, such as but not limited to: street medians, streetscape, hike and bike trails, park areas and quasi - governmental service facilities; and (ii) any and all facilities provided by the Declarant and /or the Association to or for the benefit of the local police, fire and similar governmental departments for which no reimbursement via public funds is requested or anticipated. Declarant shall convey record title or easements to some or all of the Common Properties to the Association if, as and when deemed appropriate by Declarant or as may be required by governmental officials, and Declarant shall at all times have and retain the right to effect minor redesigns or minor reconfigurations of the Common Properties (particularly along the edges) and to execute any open space declarations applicable to the Common Properties which may be permitted in order to reduce property taxes, and to take whatever steps may be appropriate to lawfully avoid or minimize the imposition of federal and state ad valorem and /or income taxes. 1.11 "Covenants" shall mean and refer to all covenants, conditions, restrictions, easements, charges and liens set forth within this Declaration. 1.12 "Declarant" shall mean and refer to Crux Financial Services, Inc. and any successor(s) and assign(s) of Crux Financial Services, Inc., with respect to the voluntary disposition of all (or substantially all) of the assets and /or ownership interests of Crux Financial Services, Inc., and /or the voluntary disposition of all (or substantially all) of the right, title and interest of Crux Financial Services, Inc. in and to the Property. However, no person or entity merely purchasing one or more Lots from Crux Financial Services, Inc. in the ordinary course of business shall be considered a "Declarant ". 1.13 "Declaration" shall mean and refer to this instrument entitled "Declaration of Covenants, Conditions and Restrictions for University Preserve Subdivision ", recorded in the Official Records of Brazos County, Texas, together with any and all amendments or supplements thereto. 1.14 "Deed" shall mean and refer to any deed, assignment, testamentary bequest, muniment of title or other instrument, or intestate inheritance and succession, conveying or transferring fee simple title or a leasehold interest or another legally recognized estate in a Lot. 1.15 "Design Guidelines" shall mean the guidelines described in Section 8.03. 1.16 "Development Period" shall mean a period commencing on the date of the recording of this Declaration in the Official Records of Brazos County, Texas and continuing thereafter until and ending the earlier to occur of: (i) substantial completion of all development (including without limitation the completion and sale of all Lots in the Subdivision to third parties) within the Property; (ii) the tenth (10 anniversary of the date of recordation of this Declaration in the public real estate records of Brazos County, Texas; or (iii) the date determined by Declarant to be the end of the Development Period. 1.17 "Dwelling Unit" shall mean and refer to any building or portion of a building situated upon the Property which is designed and intended for use and occupancy as a residence by a single person, a couple, a family or a permitted family size group of persons. 1.18 "Easement Area" shall mean and refer to those areas which may be covered by an easement specified in Article 11 below. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 3 1.19 "Exempt Property" shall mean and refer to the following portions of the Property: (i) all land and Improvements owned by the United States of America, the State of Texas, Brazos County, the City of College Station or any instrumentality, political subdivision or agency of any such governmental entity acting in a governmental (rather than a proprietary) capacity; (ii) all land and Improvements owned (including legal and beneficial ownership, whether now or in the future) by the Association or constituting a portion of the Common Properties; (iii) all land and Improvements which are not only exempt from the payment of ad valorem real property taxes by the City of College Station, Brazos County, the College Station Independent School District, and the State of Texas, but also are exempt from the payment of any assessment hereunder as expressly determined by written resolution of the Declarant and /or the Association; (iv) all Lots owned by Declarant; and (v) such other land(s) and /or Improvement(s) and /or Lot(s) which are specifically exempted from the payment of annual Assessments in accordance with a special resolution of the Board. 1.20 "Fiscal Year" shall mean each twelve (12) month period commencing on January 1 and ending on the following December 31, unless the Board shall otherwise select an alternative twelve month period. 1.21 "Homebuilder" shall mean and refer to each entity and /or individual which: (i) is regularly engaged in the ordinary business of constructing residential dwellings on subdivision lots for sale to third -party homeowners as their intended primary residence; and (ii) has entered into a contract with the Declarant to purchase one or more Lots. 1.22 "Improvement" shall mean any physical change to raw land or to an existing structure which alters the physical appearance, characteristics or properties of the land or structure, including but not limited to adding or removing square footage area space to or from a structure, painting or repainting a structure, or in any way altering the size, shape or physical appearance of any land or structure. 1.23 "Lot" shall mean and refer to each separately identifiable portion of the Assessable Property which is platted, filed and recorded in the office of the County Clerk of Brazos County, Texas and which is assessed by any one or more of the Taxing Authorities and which is not intended to be an "open space" or a portion of the Common Properties. 1.24 "Member" shall mean and refer to each Resident who is in good standing with the Association and who has filed a proper statement of residency with the Association and who has complied with all directives and requirements of the Association. Each and every Owner shall and must take such affirmative steps as are necessary to become and remain a Member of, and in good standing in, the Association. Each and every Resident (who is not otherwise and Owner) may, but is not required to, be a Member of the Association. 1.25 "Owner" shall mean and refer to the holder(s) of record title to the fee simple interest of any Lot whether or not such holder(s) actually reside(s) on any part of the Lot. 1.26 "Payment and Performance Lien" shall mean and refer to the lien described within Sections 5.08 and 5.09 of Article 5 hereinbelow. 1.27 "Property" shall mean and refer to the land described within Exhibit "A" attached hereto. 1.28 "Resident" shall mean and refer to: (a) each owner of the fee simple title to any Lot within the Property; DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 4 (b) each person residing on any part of the Assessable Property who is a bona -fide lessee pursuant to a legally cognizable lease agreement with an Owner; and (c) each individual lawfully domiciled in a Dwelling Unit other than Owner or bona - fide lessee. 1.29 "Structure" shall mean and refer to: (i) any thing or device, other than trees, shrubbery (less than two feet high if in the form of a hedge) and landscaping (the placement of which upon any Lot shall not adversely affect the appearance of such Lot) including but not limited to any building, garage, porch, shed, greenhouse or bathhouse, cabana, coop or cage, covered or uncovered patio, swimming pool, play apparatus, clothesline, fence, curbing, paving, wall or hedge more than two feet in height, signboard or other temporary or permanent living quarters or any temporary or permanent Improvement to any Lot; (11) any excavation, fill, ditch, diversion dam or other thing or device which affects or alters the flow of any waters in any natural or artificial stream, wash or drainage channel from, upon or across any Lot; (iii) any enclosure or receptacle for the concealment, collection and /or disposition of refuse; and (iv) any change in the grade of any Lot of more than three (3) inches from that existing at the time of initial approval by the Architectural Review Committee. 1.30 "Subdivision" shall mean and refer to the University Preserve Subdivision, a subdivision of certain land as described within Exhibit "A" attached hereto, in accordance with the map and plat thereof filed of record in the Official Records of Brazos County, Texas, as well as any and all revisions, modifications, corrections, or clarifications thereto. 1.31 "Taxing Authorities" shall mean and refer to Brazos County, the College Station Independent School District, the City of College Station and the State of Texas and any and all other governmental entities or agencies which have, or may in the future have, the power and authority to impose and collect ad valorem taxes on real property estates, in accordance with the Texas Constitution and applicable statutes and codes. 1.32 "Trustee" shall mean and refer to that certain individual (s) or entity (ies) designated or appointed from time to time and at any time by the Association to perform the duties and responsibilities described within Section 5.09 of Article 5 below, and its successors and assigns. 1.33 "Zoning Ordinance" shall mean and refer to City of College Station zoning ordinance, governmental regulations, and all amendments thereto. ARTICLE 2 PROPERTY SUBJECT TO THIS DECLARATION 2.01 Existing Property. The residential Lots which are, and shall be, held, transferred, sold, conveyed and occupied subject to this Declaration within the University Preserve Subdivision are more particularly described within Exhibit "A" attached hereto and incorporated herein by reference for all purposes. 2.02 Additions to Existing Property. Additional land(s) may become subject to this Declaration, or the general scheme envisioned by this Declaration, as follows: (a) The Declarant may (without the joinder and consent of any person or entity) add or annex real property additions to the scheme of this Declaration by filing of record an appropriate enabling declaration, generally similar to this Declaration, which may extend the DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 5 scheme of the Covenants to such property. Provided further however, such other declaration (s) may contain such complementary additions and modifications of these Covenants as may be necessary to reflect the different character, if any, of the added properties and as are not inconsistent with the concept and purpose of this Declaration. (b) In the event any person or entity other than the Declarant desires to add or annex additional Assessable Property and /or Common Property to the scheme of this Declaration, such annexation proposal must have the express approval of the Board. Any additions made pursuant to this Section 2.02, when made, shall automatically extend the jurisdiction, functions, duties and membership of the Association to the properties added and correspondingly subject the properties added to the convents of the enabling declaration. Upon any merger or consolidation of the Association with another association, its properties, rights and obligations may, by operation of law or by lawful articles or agreement of merger, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law or by lawful articles or agreement of merger, be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer the Covenants established by this Declaration, together with the covenants and restrictions established upon any other properties, as one scheme. ARTICLE 3 MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION 3.01 Membership. Each and every Owner of each and every Lot which is subjected to these, or substantially similar, Covenants shall automatically be, and must at all times remain, a Member of the Association in good standing. Each and every Resident (who is not otherwise an Owner) may, but is not required to, be a non - voting Member of the Association. During the Development Period, the Association shall have two (2) classes of Members: Class A and Class B. The Class A Members shall include: (a) all Owners (other than the Declarant during the Development Period); and (b) all Residents (not otherwise Owners) who have properly and timely fulfilled all registration and related requirements prescribed by the Association. The Class B Member shall be the Declarant. 3.02 Voting Rights. Two (2) classes of voting Members shall have the following voting rights during the Development Period: Class A: The Owner (s) of each Lot shall be entitled to no votes. Class B: The Class B Member shall have one (1) vote for each Lot it owns. After the Development Period, there shall be one class of voting Members as follows: The Owner (s) of each Lot shall be entitled to one (1) vote per Lot. Where more than one (1) Owner owns and holds a record fee interest in a Lot such Owner (s) may divide and cast portions of the one (1) vote as they decide, but in no event shall any one (1) Lot yield more than one (1) vote. Any Owner, Resident or Member shall not be in "good standing" if such person or entity is: (a) in violation of any portion of these Covenants, or any rule or regulation promulgated by the Board; (b) delinquent in the full, complete and timely payment of any Annual Assessment, special assessment, or any other fee, charge or fine which is levied, payable or collectible pursuant to the provisions of these Covenants, the Bylaws or any rule or regulation promulgated by the Board. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 6 • The Board may make such rules and regulations, consistent with the terms of this Declaration and the Bylaws, as it deems advisable, for: any meeting of Members; proof of membership in the Association; the status of good standing; evidence of right to vote; the appointment and duties of examiners and inspectors of votes; the procedures for actual voting in person or by proxy; registration of Members for voting purposes; and such other matters concerning the conduct of meetings and voting as the Board shall deem fit. 3.03 Board of Directors. During the Development Period, the affairs of the Association shall be managed initially by a board of two (2) individuals elected by the Class B Member. However, after the Development Period, the Board shall consist of at least three (3) individual Directors elected by the Members. The Directors need not be Members of the Association. Directors shall be elected for one (1) year terms of office and shall serve until their respective successors are elected and qualified. Any vacancy which occurs in the board, by reason of death, resignation, removal, or otherwise, may be filled at any meeting of the board by the affirmative vote of a majority of the remaining Directors. Any Director elected to fill a vacancy shall serve as such until the expiration of the term of the Director whose position he or she was elected to fill. 3.04 Notice and Voting Procedures. Quorum, notice and voting requirements of and pertaining to the Association may be set forth within the Articles and Bylaws, as either or both may be amended from time to time, and shall be in accordance with permitted Texas law. ARTICLE 4 RIGHTS OF ENJOYMENT IN THE COMMON PROPERTIES 4.01 Easement. Subject to the provisions of Sections 4.02 through 4.07, each and every Owner in good standing with the Association shall have a non - exclusive right and easement of enjoyment in and to all Common Properties, and such easement shall be appurtenant to and shall pass with every Lot, provided the conveyance and transfer is accomplished in accordance with this Declaration. All Residents in good standing with the Association shall have a non- transferable, non - exclusive privilege to use and enjoy all Common Properties for so long as they are Members in good standing with the Association. 4.02 Extent of Members' Easements. The rights and easements of use, recreation and enjoyment created hereby shall be subject to the following: (a) The right of the Declarant or Association to prescribe reasonable regulations (e.g. speed limits on the streets and imitations on parking on or in the streets) and policies governing, and to charge reasonable expense reimbursements and /or deposits (e.g., key, access card and /or radio transmitter device deposits) related to, the use, operation and maintenance of the Common Properties; (b) Liens or mortgages placed against all or any portion of the Common Properties with respect to monies borrowed by the Declarant to develop and improve the Properties or Common Properties or by the Association to improve or maintain the Common Properties; (c) The right of the Association to enter into and execute contracts with any party (including, without limitation, the Declarant or its affiliates) for the purpose of providing management, maintenance or such other materials or services consistent with the purposes of the Association and /or this Declaration; DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 7 (d) The right of the Declarant or the Association to take such steps as are reasonably necessary to protect the Common Properties against foreclosure; (e) The right of the Declarant or the Association to enter into and execute contracts with the owner - operators of any community antenna television system ( "CATV ") or other similar operation for the purpose of extending cable or utility or security service on, over or under the Common Properties to ultimately provide service to one or more of the Lots; (f) The right of the Declarant or the Association in accordance with the requirements of the Chapter 209 of Texas Property Code to suspend the voting rights of any Member and to suspend the right of any Member to use or enjoy any of the Common Properties for any period during which any assessment (including without limitation "fines') against a Lot resided upon by such Member remains unpaid, or during which non - compliance with this Declaration exists, and otherwise for any period deemed reasonable by the Association for any infraction of the then - existing rules and regulations and /or architectural guidelines; (g) The right of the Declarant and /or the Association to dedicate or transfer all or any part of the Common Properties to any municipal corporation, public agency, governmental authority, or utility for such purposes and upon such conditions as may be agreed to by the Declarant and the Board; and (h) The right of the Declarant and /or the Association to grant permits, licenses and easements over the Common Properties for utilities, roads and other purposes necessary for the proper operation of University Preserve Subdivision. 4.03 Restricted Actions by Members. No Member shall permit anything to be done on or in the Common Properties which would violate any applicable public law or Zoning Ordinance or which would result in the cancellation of or the increase of premiums for any insurance carried by the Association, or which would be in violation of any law or any rule or regulation promulgated by the Board. 4.04 Damaqe to the Common Properties. Each Member shall be liable to the Association for any damage to any portion of the Common Properties caused by the negligence or willful misconduct of the Member or his family and guests. 4.05 Rules of the Board. All Members shall abide by any rules and regulations adopted by the Board. The Board shall have the power to enforce compliance with said rules and regulations by all appropriate legal and equitable remedies, and a Member determined to have violated said rules and regulations shall be liable to the Association for all damages and costs, including reasonable attorneys' fees. 4.06 Use of Common Properties. The Board shall have the power and authority to prescribe rules and regulations which extend to and cover matters such as (but not limited to) the possession and consumption of alcoholic beverages, loud and obnoxious noises and behavior, and the supervision by attending adults of children. No person or entity (excluding the Declarant) shall use any portion of the Common Properties to: (a) solicit, promote or conduct business, religious, political or propaganda matters; (b) distribute handbills, newsletters, flyers, circulars or other printed materials, without the prior written consent of the Association (which consent may be withheld in its sole and absolute discretion). The Association may, on its own motion, permit and allow reasonable DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 8 activities to occur on the Common Properties in accordance with rules and regulations deemed reasonable and appropriate by the Association. 4.07 User Fees and Charges. The Board may levy and collect special charges and fees for any and all extraordinary operation and maintenance of the Common Properties and services which the Board determines to be necessary for the advancement, benefit and welfare of the Owners or Residents. Examples (by way of illustration, and not limitation) of these special charges and fees would include: extraordinary utility consumption; additional gate and /or security personnel for parties or special events; management overtire services; and additional insurance conditions or requirements. In establishing special user fees, the Board may formulate reasonable classifications of users. Such fees should be uniform within each class but need not be uniform from class to class. If an Owner shall fail to pay a charge or fee when due and payable, said unpaid charge or fee shall be delinquent and upon written notice to said Owner shall become a personal debt of said Owner. Failure of any Owner to pay said fee and charge when due and payable, in addition, shall be a breach of these Covenants. 4.08 Encroachments. If: (a) construction, reconstruction or repair activities which have been approved by the ARC; or (b) shifting, settlement or other movements of any portion of ARC approved improvements, results either in the Common Properties encroaching on a Lot or Dwelling Unit or in a Lot or Dwelling Unit encroaching on the Common Properties or on another Lot or Dwelling Unit, and unless otherwise directed by the ARC, a valid easement shall then and there exist to permit the encroachment and reasonable and necessary maintenance activities related thereto. 4.09 Private Streets. The entry gatehouse, streets, sidewalks and alley network within University Preserve Subdivision are "private" and constitute a portion of the Common Properties which are subject to the jurisdiction and administration by the Association. In addition to the other provisions appearing within this Article, the Board of Directors of the Association is specifically authorized to recommend, adopt, implement and enforce rules, regulations, mechanisms and procedures governing use of the entry gatehouse, sidewalks, streets and alleys covering items such as (but no necessarily limited to): (a) identification and entry programs for Owners, Residents and Members, their respective immediate families, their guests and vehicles owned or driven by any of them; (b) speed limits, designated parking areas, restricted parking areas and no- parking areas; (c) signs and graphics to provide announcements to unauthorized personnel concerning potential criminal trespass matters; (d) a "fines" system through which the Association can levy and collect fines from its Members for violations of the applicable rules and regulations; and (e) disclaimers of liability for any and all matters or occurrences on or related to the Common Properties. 4.10 Conveyance to City of College Station. The Members may determine by majority vote to convey all or a part of the Common Property to the City of College Station. Conveyance of the private streets in the Subdivision would result in removal of the private gate. In the event the Members decide to convey the private streets to the City of College Station, the Declarant or the Association as its assignee will exercise the rights reserved in the deeds to Lots 1 - 6, Block 2 and Lots 6 - 11, Block 1. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 9 ARTICLE 5 COVENANTS FOR ASSESSMENTS 5.01 Creation of the Lien and Personal Obligation of Assessments. Declarant, for each Lot owned by it within the Subdivision, hereby covenants and agrees, and each subsequent Owner of any Lot, by acceptance of a Deed therefor, whether or not it shall be so expressed in any such Deed or other conveyance, shall be deemed to covenant and agree (and such covenant and agreement shall be deemed to constitute a portion of the purchase money and consideration for acquisition of the Lot so as to have affected the purchase price) to pay to the Association (or to an independent entity or agency which may be designated by the Association to receive such monies): (a) regular Annual Assessments; (b) special group assessments for capital improvements or unusual or emergency matters, such assessments to be fixed, established and collected from time to time as hereinafter provided; (c) special individual assessments levied against individual Owners to reimburse the Association for extra or unusual costs incurred for items such as (but no limited to): maintenance and repairs to portions of the Property caused by the willful or negligent acts of the individual Owner, Member or Resident; the remedy, cure or minimizing of problems cause by, or as a result of, violations of these Covenants by an Owner, Member or Resident; and (d) individual assessments and fines levied against an individual Owner, Member or Resident for violations of rules and regulations pertaining to the Association and /or the Common Properties. The regular, special group, special individual and individual assessments, together with such late charges, interest and costs of collection thereof as are hereinafter provided, shall be a charge on the land and shall be a continuing lien upon each Lot against which each such assessment is made and shall also be the continuing personal obligation of the then - existing Owner, Member and Resident of such Lot at the time when the assessment fell due. Each Owner of each Lot shall be directly liable and responsible to the Association for the acts, conduct and omission of each and every Member and Resident associated with the Dwelling Unit (s) on such Owner's Lot. 5.02 Purposes of Assessments. The assessments levied by the Association shall be used for the purposes of promoting the comfort, health, recreation, safety, convenience, welfare and quality of life of the Residents of the Property and in supplementing some services and facilities normally provided by or associated with governmental or quasi - governmental entities, and otherwise for the improvement and maintenance of private streets, gatehouse, floodway easement areas, walkways, common green, ponds, lakes, recreational areas and other properties, services and facilities devoted and related to the use and enjoyment of the Common Properties and operation of the Association, including, but not limited to or for: the payment of taxes on the Common Properties and insurance in connection with the Common Properties; the payment for utilities and the repair, replacement and additions of various items within the Common Properties; paying the cost of labor, equipment (including the expense of leasing any equipment) and materials required for, and management and supervision of, the Common Properties; carrying out the duties of the Board of Directors of the Association as set forth in Articles 4 and 6 herein; carrying out the other various matters set forth or envisioned herein or in any Amended Declaration related hereto; and for any matter or thing designated by the City of College Station in connection with any zoning, subdivision, platting, building, development or occupancy DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 10 requirements. The items and areas described above are not intended to be exhaustive but merely illustrative. 5.03 Basis and Amount of Annual Assessments. Until and unless otherwise determined by the Board of Directors of the Association, the initial regular base assessment shall be $ per Lot per month for the maintenance of the Common Properties and private streets. The Association's Board of Directors may fix and modify from time to time, the actual regular base assessment. Notwithstanding any provision herein to the contrary, any and all Lots owned by the Declarant during the Development Period shall be exempt from the payment of any and all assessments of any kind or character. 5.04 Special Group Assessments. In addition to the regular Annual Assessment authorized by Section 5.03 hereof, the Association may levy in any Fiscal Year a special assessment, applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, unexpected repair or replacement of a capital improvement upon the Common Properties, including any necessary fixtures and personal property related thereto or for any unusual or emergency purpose (s) (including without limitation those matters arising out of litigation and /or judgments); provided that any such assessment shall have the affirmative approval of at least two - thirds of the individuals comprising the Board. 5.05 Rate of Assessments. Both regular and special group assessments must be fixed at a uniform rate for all residential Lots owned by Class A Members who are not Homebuilders, unless otherwise approved by at least two- thirds of the individuals comprising the Board. The Declarant shall have the right to collect $ / Lot from each Homebuilder to cover the first 120 days from and after the closing of each particular Lot, and thereafter the Homebuilder shall pay the standard regular assessment for such Lot. 5.06 Date of Commencement of Assessments; Due Dates. The Annual Assessment shall be due and payable in twelve equal monthly installments in advance on the first day of each month and shall, if not automatically paid within ten (10) consecutive calendar days thereafter, automatically become delinquent. The Board shall use reasonable efforts to provide each Owner with an invoice statement of the appropriate amount due, but any failure to provide such a notice shall not relieve any Owner of the obligation established by the preceding sentence. The Board may further prescribe: (a) procedures for collecting advance regular Annual Assessments from new Owners, Members or Residents out of "closing transactions "; and (b) different procedures for collecting assessments from Owners who have had a recent history of being untimely in the payment(s) of assessments. 5.07 Duties of the Board of Directors with Respect to Assessments. (a) In the event of a revision to the amount or rate of the Annual Assessment, or establishment of a special group assessment, the Board shall fix the amount of the assessment against each Lot, and the applicable due date(s) for each assessment, at least sixty (60) days in advance of such date or period and shall, at that time, prepare a roster of the Lots and assessments applicable thereto which shall be kept in the office of the Association; (b) Written notice of the applicable assessment shall be actually or constructively furnished to every Owner subject thereto in accordance with the procedures then determined by the Board as being reasonable and economical; and (c) The Board shall, upon reasonable demand, furnish to any Owner originally liable for said assessment, a certificate in writing signed by an officer of the Association, setting forth DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 11 whether said assessment has been paid. Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid. A reasonable charge may be made by the Board for the issuance of such certificate. 5.08 Effect of Non - Payment of Assessment; the Personal Obligation of the Owner; the Lien; and Remedies of Association. (a) Effective as of, and from and after the filing and recordation of this Declaration, there shall exist a self- executing and continuing contract Payment and Performance Lien and equitable charge on each Lot to secure the full and timely payment of each and all assessments and all other charges and monetary amounts and performance obligations due hereunder. Such lien shall be at all times superior to any claim of homestead by or in any Owner. If any assessment, charge or fine or any part thereof is not paid on the date(s) when due, then the unpaid amount of such assessment, charge or fine shall (after the passage of any stated grace period) be considered delinquent and shall, together with any late charge and interest thereon at the highest lawful rate of interest per annum and costs of collection thereof, become a continuing debt secured by the self- executing Payment and Performance Lien on the Lot of the non - paying Owner /Member /Resident which shall bind such Lot in the hands of the Owner and Owner's heirs, executors, administrators, devisees, personal representatives, successors and assigns. The Association shall have the right to reject partial payments of an unpaid assessment or other monetary obligation and demand the full payment thereof. The personal obligation of the then existing Owner to pay such assessment, however, shall remain the Owner's personal obligation and shall not pass to Owner's successors in title unless expressly assumed by them. However, the lien for unpaid assessments shall be unaffected by any sale or assignment of a Lot and shall continue in full force and effect No Owner may waive or otherwise escape liability for any assessment provided herein by non -use of the Common Properties or abandonment of the Lot. No diminution or abatement of assessments shall be claimed or allowed by reason of any alleged failure of the Association to take some action or to perform some function required to be taken or performed by the Association, or for inconvenience or discomfort arising from the making of improvements or repairs which are the responsibility of the Association, or from any action taken by the Association to comply with any law, ordinance, or with any order or directive of any municipal or other governmental authority, the obligation to pay such assessments being a separate and independent covenant on the part of each Owner; (b) The Association may also give written notification to the holder(s) of any mortgage on the Lot of the non - paying Owner of such Owner's default in paying any assessment, charge or fine, particularly where the Association has theretofore been furnished in writing with the correct name and address of the holder(s) of such mortgage, a reasonable supply of self - addressed postage prepaid envelopes, and a written request to receive such notification; (c) If any assessment, charge or fine or part thereof is not paid when due, the Association shall have the right and option to impose a late charge (but only to the extent permitted by applicable law) to cover the additional administrative costs involved in handling the account. The unpaid amount of any such delinquent assessment, charge, or fine shall bear interest from and after the date when due at the highest lawful rate of interest per annum until fully paid. The Association may, at its election, retain the services of an attorney to review, monitor and /or collect unpaid assessments, charges, fines and delinquent accounts, and there shall also be added to the amount of any unpaid assessment, charge, fine or any delinquent account any and all attorneys' fees and other costs of collection incurred by the Association; (d) The Association may, at its discretion be subject to all applicable debt collection statutes: (i) prepare and file a lien affidavit in the public records of Brazos County, Texas which specifically identifies the unpaid assessments, charges or fines; and (ii) publish and post, within one or more locations within the Property, a list of those individuals or entities who are delinquent DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 12 and, if applicable, their suspended use and enjoyment of the Common Properties until and unless the delinquency has been cured to the reasonable satisfaction of the Association. Each Owner consents to these procedures and authorizes the Board to undertake such measures for the general benefit of the Association; (e) All agreements between any Owner and the Association and /or Declarant, whether now existing or hereafter arising and whether written or oral and whether implied or otherwise, are hereby expressly limited so that in no contingency or event whatsoever shall the amount paid, or agreed to be paid, to the Association and /or Declarant or for the payment of performance of any covenant or obligation contained herein or in any other document exceed the maximum amount permissible under applicable law. tf, from any circumstance whatsoever fulfillment of any provision hereof or of such other document at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by law, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity, and if from any such circumstances the Association and /or Declarant should ever receive an amount deemed interest by applicable law which shall exceed the highest lawful rate, such amount which would be excessive interest shall be applied to the reduction of the actual base assessment amount or principal amount owing hereunder and other indebtedness of the Owner to the Association and /or Declarant and not to the payment of interest of if such excessive interest exceeds the unpaid balance of the actual Annual Assessment hereof and such other indebtedness, the excess shall be refunded to Owner. All sums paid or agreed to be paid by any Owner for the use, forebearance or detention of any indebtedness to the Association and /or Declarant shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread so that the interest charged, collected or received on account of such indebtedness is never more than the maximum amount permitted by applicable law. The terms and provisions of this paragraph shall control and supersede every other provision of all agreements between any Owner and the Association and /or Declarant. 5.09 Power of Sale. (a) The lien described within the preceding Section is and shall be a contract Payment and Performance Lien. Each Owner, for the purpose of better securing each and all monetary obligations described within these Covenants, and in consideration of the benefits received and to be received by virtue of the ownership of real estate within University Preserve Subdivision, has granted, sold and conveyed and by these covenants does grant, sell and convey unto the Trustee, such Owner's Lot. To have and to hold such Lot, together with the rights, privileges and appurtenances thereto belonging unto the said Trustee, and to its substitutes or successors, forever. And each Owner does hereby bind himself and /or herself, their heirs, executors, administrators and assigns to warrant and forever defend the Lot unto the said Trustee, its substitutes or successors and assigns, forever, against the claim, or claims of all persons claiming or to claim the same or any part thereof. (b) This conveyance is made in trust to secure payment of each and all assessments and other obligations prescribed by these Covenants to and for the benefit of the Association as the Beneficiary. In the event of default in the payment of any obligation hereby secured, in accordance with the terms thereof, then and in such event, Beneficiary may elect to declare the entire indebtedness hereby secured with all interest accrued thereon and all other sums hereby secured due and payable (subject, however, to the notice and cure provisions set forth in Section 51.002 of the Texas Property Code), and in the event of default in the payment of said indebtedness when due or declared due, it shall thereupon, or at any time thereafter, be the duty of the Trustee, or its successor or substitute as hereinafter provided, at the request of Beneficiary (which request is hereby conclusively presumed), to enforce this trust; and after advertising the time, place and terms of the sale of the Lot then subject to the lien hereof, and mailing and filing notices as required by Section 51.002, Texas Property Code, as then amended and otherwise DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 13 complying with that statute, then Trustee shall sell the Lot, then subject to the lien hereof, at public auction in accordance with such notices on the first Tuesday in any month between the hours of ten o'clock A.M. and four o'clock P.M., to the highest bidder for cash, seNing all of the Lot as an entirety or in such parcels as the Trustee acting may elect, and make due conveyance to the Purchaser or Purchasers, with general warranty binding upon the Owner, his heirs and assigns; and out of the money arising from such sale, the Trustee acting shall pay first, all the expenses of advertising the sale and making the conveyance, including a reasonable commission to itself, which commission shall be due and owing in addition to the attorney's fees provided for, and then to Beneficiary the full amount of principal, interest, attorney's fees and other charges due and unpaid on said indebtedness secured hereby, rendering the balance of the sales price, if any, to the Owner, his heirs or assigns and /or to any other lienholders (if so required by applicable law); and the recitals in the conveyance to the Purchaser or Purchasers shall be full and conclusive evidence of the truth of the matters therein stated, and all prerequisites to said sale shall be presumed to have been performed, and such sale and conveyance shall be conclusive against the Owner, his heirs and assigns. (c) It is agreed that in the event a foreclosure hereunder should be commenced by the Trustee, or its substitute or successor, Beneficiary may at any time before the sale of said property direct the said Trustee to abandon the sale, and may then institute suit for the collection of said indebtedness, and for the foreclosure of this contract Payment and Performance Lien; it is further agreed that if Beneficiary should institute a suit for the collection thereof, and for a foreclosure of this contract lien, that it may at any time before the entry of a final judgment in said suit dismiss the same, and require the Trustee, its substitute or successor to sell the Lot in accordance with the provisions of this section. Beneficiary, if it is the highest bidder, shall have the right to purchase at any sale of the Lot, and to have the amount for which such Lot is sold credited on the debt then owing. Beneficiary in any event is hereby authorized to appoint a substitute trustee, or a successor trustee, to act instead of the Trustee named herein without other formality than the designation in writing of a substitute or successor trustee; and the authority hereby conferred shall extend to the appointment of other successor and substitute trustees successively until the indebtedness hereby secured has been paid in full, or until said Lot is sold hereunder, and each substitute and successor trustee shall succeed to all of the rights and powers of the original trustee named herein. In the event any sale is made of the Lot, or any portion thereof, under the terms of this section, the Owner, his heirs and assigns, shall forthwith upon the making of such sale surrender and deliver possession of the property so sold to the Purchaser at such sale, and in the event of his failure to do so he shall thereupon from and after the making of such sale be and continue as tenants at sufferenace of such Purchaser, and in the event of his failure to surrender possession of said property upon demand, the Purchaser, his heirs or assigns, shall be entitled to institute and maintain an action for forcible detainer of said property in the Justice of the Peace Court in the Justice Precinct in which such property, or any part thereof, is situated. The foreclosure of the continuing contract lien on any one or more occasions shall not remove, replace, impair or extinguish the same continuing lien from securing all obligations arising from and after the date of foreclosure. (d) Notwithstanding anything to the contrary contained in this Article 5, the Association's foreclosure of the Payment and Performance Lien shall be subject to the requirements of Ch. 209, Texas Property Code, as amended or replaced from time to time. The terms and provisions of this paragraph shall control and supercede any contrary provisions in this Declaration. 5.10 Rights of City of College Station. In the event that the Association, its successors or assigns, shall fail or refuse to adequately maintain the appearance and condition of the Common Properties which it is obligated to maintain hereunder, the City of College Station, Texas shall have the right and may assume the duty of performing all such maintenance obligations of the Association at any time, upon giving written notice to the Owners or at any time after the DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 14 expiration of thirty (30) days after receipt by the Association, its successors or assigns, of written notice specifying in detail the nature and extent of the failure to maintain without such failure being remedied, whichever notice shall be deemed appropriate by the City of College Station. Upon assuming such maintenance obligations, the City of College Station may levy an assessment upon each Lot on a pro rata basis for the cost of such maintenance, notwithstanding any other provisions contained in this Declaration, which assessment shall constitute a lien upon the Lot against which each assessment is made. During the period the City of College Station has a right and assumes the obligation to maintain and care for the Common Properties, the Association shall have no obligation or authority with respect to such maintenance. The right and authority of the City of College Station to maintain the Common Properties shall cease and terminate when the Association, its successors or assigns, shall present to the City of College Station reasonable evidence of its willingness and ability to resume maintenance of the Common Properties. In the event the City of College Station assumes the duty of performing the maintenance obligations of the Association as provided herein, then the City of College Station, its agents, representatives and employees shall have right of access to and over the Common Properties for the purpose of maintaining, improving and preserving the same; and in no event, and under no circumstances, shall the City of College Station be liable to the Association or any Owner, Resident or Member, or their respective heirs, executors, administrators, devisees, personal representatives, successors and assigns for negligent acts or construction relating in any manner to maintaining, improving and preserving the Common Properties, or to any Owner, Resident, Member, the Association or any other person for failure to perform such maintenance. 5.11 Subordination of the Lien to Mortgages. The hen securing the payment of the assessments and other obligations provided for herein shall be superior to any and all other charges, liens or encumbrances which may hereafter in any manner arise or be imposed upon any Lot whether arising from or imposed by judgment or decree or by any agreement, contract, mortgage or other instrument, except for: (a) bona -fide first mortgage or deed of trust liens for purchase money and /or home improvement purposes placed upon a Lot, in which event the Association's lien shall automatically become subordinate and inferior to such first lien; (b) liens for taxes or other public charges as are by applicable law made superior to the Association's lien; and (c) such other liens about which the Board may, in the exercise of its reasonable discretion, elect to voluntarily subordinate the Association's lien; provided however, such subordination shall apply only to: (i) the assessments which have been due and payable prior to the foreclosure sale (whether public or private) of such Lot pursuant to the terms and conditions of any such first mortgage or deed of trust or tax lien; (ii) the permitted lien on the Lot alone and not on or to any easement appurtenant for use and enjoyment of the Common Properties. Such sale shall not relieve such Lot from liability for the amount of any assessment thereafter becoming due nor from the lien of any such subsequent assessment. Such subordination shall not apply where the first mortgage or deed of trust or tax lien is used as a device, scheme or artifice to evade the obligation to pay assessments and /or to hinder the Association in performing its functions hereunder. 5.12 Exempt Property. The following property otherwise subject to this Declaration shall be exempted from any assessments, charges and liens created herein: (a) All property dedicated to and accepted by a local public or governmental authority; (b) Common Properties; and DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 15 (c) Exempt Property. ARTICLE 6 GENERAL POWERS AND DUTIES OF THE BOARD OF DIRECTORS OF THE ASSOCIATION 6.01 Powers and Duties. The affairs of the Association shall be conducted by its Board. The Board, for the benefit of the Association, the Property and the Owners and the Members and Residents, may provide and may pay for, out of the assessment fund(s) provided for in Article 5 above, one or more of the following: (a) Care, preservation and maintenance of the Common Properties (including without limitation the proper maintenance of the private streets) and the furnishing and upkeep of any desired personal property for use in or on the Common Properties; (b) Recreational and social programs and activities for the general benefit of the Residents and programs which are designed only for separately identifiable sub - groups of Residents, such as (but not limited to) infants, adolescents, teenagers, students, mothers and senior citizens; (c) Supplementing (to the extent, if any, deemed necessary, appropriate and affordable by the Board) the police, fire, ambulance, garbage and trash collection and similar services within the Properties traditionally provided by local governmental agencies; (d) Taxes, insurance and utilities (including, without limitation, electricity, gas, water, sewer and telephone charges) which pertain to the Common Properties; (e) The services of any person or firm (including the Declarant and any affiliates of the Declarant) to manage the Association or any separate portion thereof, to the extent deemed advisable by the Board, and the services of such other personnel as the Board shall determine to be necessary or proper for the operation of the Association, whether such personnel are employed directly by the Board or by the manager of the Association. The Board is specifically authorized to hire and employ one or more managers, secretarial, clerical, staff and support employees. The Board is specifically authorized to engage personnel and equipment (such as computers, software and electronic communication and transmission devices) for the administration of the Association and the collection of assessments described in Article 5; (f) Any other materials, supplies, furniture, labor, services, maintenance, repairs, structural alterations, taxes or assessments which the Board is required to obtain or pay for pursuant to the terms of this Declaration or which in its opinion shall be necessary or proper for the operation or protection of the Association or for the enforcement of this Declaration. The Board shall have the following additional rights, powers and duties: (g) To execute all declarations of ownership for tax assessment purposes with regard to any of the Common Properties owned by the Association; (h) To enter into agreements or contracts with insurance companies, Taxing Authorities, the holders of first mortgage liens on the individual Lots and utility companies with respect to: (i) any taxes on the Common Properties; (ii) monthly escrow and impound payments by a mortgagee regarding the assessment, collection and disbursement process envisioned by Article 5; (io) utility installation, consumption and service matters; and (iv) the escrow or impounding of monies sufficient to timely pay the Annual Assessment applicable to any Lot; DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 16 (i) To borrow funds (including, without limitation, the borrowing of funds from the Declarant and /or its affiliates) to pay costs of operation, secured by such assets of the Association as deemed appropriate by the lender and the Association (j) To enter into contracts, maintain one or more bank accounts and, generally, to have all the powers necessary or incidental to the operation and management of the Association; (k) To protect or defend the Common Properties from Toss or damage by suit or otherwise, to sue or defend in any court on behalf of the Association and to provide adequate reserves for repairs and replacements; (1) To make reasonable rules and regulations for the operation of the Common Properties and to amend them from time to time; (m) To prepare an annual operating budget and to make available for review by each Owner at the Association offices within ninety (90) days after the end of each Fiscal Year an annual report; (n) Pursuant to Article 7 herein, to adjust the amount, collect and use any insurance proceeds to repair damage or replace lost property; and if proceeds are insufficient to repair damage or replace lost property, to assess the Owners in proportionate amounts to cover the deficiency; and (o) To enforce the provisions of this Declaration and any rules made hereunder and, subject to the requirements of ch. 209, Texas Property Code as amended and replaced from time to time, to enjoin and seek damages from any Owner, Resident or Member for violation of such provisions or rules. The Board is specifically authorized and empowered to establish (and to revise and amend from time to time) a monetary "fines" system which may include component steps such as warning citations, ticketing, due process hearings and appeals and a flat rate or discretionary range or geometric progression of fine amounts, which, when pronounced, shall constitute a permitted individual Lot Owner assessment secured by the continuing Payment and Performance Lien herein established. The Association may: (i) borrow monies from the Declarant; (ii) lease equipment from the Declarant; (iii) contract with the Declarant concerning the provision of any personnel, labor, supplies, materials and services, provided such contract terms and conditions are: generally comparable (in terms of price, quality and timeliness) with those that might be otherwise obtained from unrelated third parties; and, as to professional management contracts, terminable by the Association at any time for an reason whatsoever and without penalty upon furnishing at least ninety (90) days advance notice thereof to Declarant. The Board shall not be required to solicit bids from unrelated third parties before entering into any contract with the Declarant and the reasonable judgment and resolution of the Board to enter into any such contract with the Declarant (absent fraud, gross negligence or willful misconduct) shall be final and conclusive and binding upon the Association and all of its Members. 6.02 Board Powers. The Board shall have the right and obligation to perform the functions of the Board on behalf of the Association. In the event or if for any reason the Board is not deemed authorized to act for and on behalf of the Association and the Members, then the Declarant may exercise its power and authority under Article 13, Section 13.01, to act for and on behalf of the Association and the Members, and the Association shall reimburse the Declarant for any and all reasonable expenses incurred in so acting. 6.03 Maintenance Contracts. The Board, on behalf of the Association, shall have full power and authority to contract with any Owner, Member or Resident (including, without limitation, DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 17 . , the Declarant) for performance, on behalf of the Association, of services which the Association is otherwise required to perform pursuant to the terms hereof, such contracts to be upon such terms and conditions and for such consideration as the Board may deem proper, advisable and in the best interests of the Association. 6.04 Liability Limitations. Neither any Resident nor the directors and officers and managers of the Association shall be personally liable for debts contracted for or otherwise incurred by the Association or for any torts committed by or on behalf of the Association or for a tort of another Resident, whether such other Resident was acting on behalf of the Association or otherwise. Neither the Declarant, the Association, its directors, officers, managers, agents or employees shall be liable for any actual, incidental or consequential damages for failure to inspect any premises, improvements or portion thereof or for failure to repair or maintain the same. The Declarant, the Association or any other person, firm or corporation liable to make such repairs or maintenance shall not be liable for any personal injury or other actual, incidental or consequential damages occasioned by any act or omission in the repair or maintenance of any premises, improvements or portion thereof. 6.05 Reserve Funds. The Board may establish reserve funds which may be maintained and /or accounted for separately from other funds maintained for annual operating expenses and may establish separate, irrevocable trust accounts or any other recognized bookkeeping or tax procedures in order to better demonstrate that the amounts deposited therein are capital contributions and not net or taxable income to the Association. ARTICLE 7 INSURANCE; REPAIR; RESTORATION; COMMUNITY SERVICES ARRANGEMENTS 7.01 Right to Purchase Insurance. The Association shall have the right and option to purchase, carry and maintain in force insurance covering any or all portions of the Common Properties, any improvements thereon or appurtenant thereto, for the interest of the Association, its Board of Directors, officers, managers, agents and employees, and of all Members of the Association, in such amounts and with such endorsements and coverage as shall be deemed appropriate by the Board and /or as specifically required by the mortgagees or insurers. Such insurance may include, but need not be limited to: (a) Insurance against loss or damage by fire and hazards covered by a standard extended coverage endorsement in an amount which shall be equal to the maximum insurable replacement value, excluding foundation and excavation costs; (b) Comprehensive public liability and property damage insurance on a broad from basis, including coverage of personal liability (if any) of the Board, Owners, Residents and Members with respect to the Common Properties; (c) Fidelity bonds for all officers and employees of the Association having control over the receipt or disbursement of funds; and (d) Liability insurance regarding the errors and omissions of directors, officers, managers, employees and representatives of the Association. 7.02 Insurance and Condemnation Proceeds. The Association shall be the exclusive representative of the Members in any proceedings, negotiations, settlements or agreements concerning insurance or condemnation. The Association and the Members may use the net DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 18 insurance or condemnation proceeds to repair and replace any damage or destruction of property, real of personal, covered by such insurance or condemnation. Any balance from the proceeds of insurance or condemnation paid to the Association, remaining after satisfactory completion of repair and replacement or after the Board has elected to waive the repair, restoration or replacement, shall be retained by the Association as part of a general reserve fund for repair and replacement of the Common Properties. 7.03 Insufficient Proceeds. If the insurance or condemnation proceeds are insufficient to repair or replace any loss or damage, the Association may levy a special group assessment as provided for in Article 5 of this Declaration to cover the deficiency. 7.04 Community Service Arrangements. Declarant and the Association have arranged for the employment and utilization of a mechanical crossing gate and /or unarmed community services personnel generally stationed at the gatehouse entry point to the Properties. The Declarant and the Association hope that the gatehouse and private streets concept will discourage undesired and unauthorized vehicular traffic within the Properties and foster a higher degree of peace and tranquility. The gate program is not designed to restrict or impede pedestrian traffic into, within or out of the Properties. Although the Declarant and the Association reasonably believe that the existence and visibility of community services personnel and /or controlled access points may discourage the commission of criminal acts (e.g., burglary, theft, etc.) within the Property nevertheless neither the Declarant not the Association warrant or guarantee that: (a) the community services personnel and /or gate arrangements are sufficient and adequate to diminish or eliminate the commission of crimes against persons or property; and (b) such acts will not be attempted or actually occur within the Property. These community services arrangements are not designed or intended to replace the conventional police and fire protection and paramedical services available from the City of College Station. The Association will seek to carry public liability insurance generally covering bodily injury and property damage arising out of negligent acts by employees, members or authorized representatives of the Association. The Association will not carry any insurance pertaining to, nor does it assume any liability or responsibility for, the real or personal property of the Owners, Residents and Members (and their respective family members and guests). Each Owner, Resident and Member expressly understands, covenants and agrees with the Declarant and the Association that: (a) Neither Declarant nor the Association has any responsibility or liability of any kind whatsoever regarding or pertaining to the real and personal property of each Owner, Resident and Mem ber; (b) Each Owner, Resident and Member shall, from time to time, consult with reputable insurance industry representatives of each Owner's, Resident's and Member's own selection to select, purchase, obtain and maintain appropriate insurance providing the amount and kind of insurance deemed satisfactory to each Owner, Resident and Member covering his or her real and personal property; (c) Each Owner, Resident and Member releases and holds Declarant and the Association harmless from any uninsured liability, claims, causes of action or damages of any kind or character whatsoever arising out of or related (directly or indirectly) to any and all aspects of the community services system and private streets within the Property, including, without limitation: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 19 (i) the interviewing, hiring, training, licensing (if any), bonding (if any) and employment of community services personnel; (ii) the instructions, directions and guidelines issued to or by the community services personnel; (iii) the duties, performance, actions, inactions or omission of or by the community services personnel; and (iii) the functioning (whether mis -, mal -, or non -) of the mechanical gate access devices; (d) Each Owner, Resident and Member will cooperate with Declarant, the Association and the ARC in connection with the establishment, evolution and maintenance of reasonable controls on the pedestrian and vehicular traffic into and within the Property and abide by any and all rules and regulations of the Association, as adopted and promulgated from time to time, related to the entry upon and use of any private streets and other Common Properties within the Property. ARTICLE 8 ARCHITECTURAL CONTROL COMMITTEE 8.01 Architectural Review Committee. During the Development Period, the Architectural Review Committee ( "ARC ") shall be composed of at least two (2) individuals selected and appointed by the Declarant, each generally familiar with residential and community development design matters and knowledgeable about the Declarant's concern for a consistent approach to and construction of improvements within University Preserve Subdivision. The initial members of the ARC will be Switzer Deason and M. Catherine Deason. In the event of the death, incapacity or resignation of any member of the ARC, the Declarant (during the Development Period) shall have full authority to designate and appoint a successor. From and after conclusion of the Development Period, the ARC shall be composed of at least three (3) individuals and shall be appointed, and replaced in the event of death, incapacity or resignation, by the Board. 8.02 ARC Jurisdiction. No building, structure, fence, wall or improvement of any kind or nature shall be erected, placed or altered on any Lot until all plans and specifications have been submitted to and approved in writing by the ARC, or a majority of its members, as to: (a) quality of workmanship and materials, adequacy of site dimensions, adequacy of structural design and proper facing of main elevation with respect to nearby streets in accordance with this Declaration and /or the Design Guidelines and /or bulletins; (b) minimum finished floor elevation and proposed footprint of the dwelling; (c) conformity and harmony of the external design, color, type and appearance of exterior surfaces and landscaping; (d) drainage solutions; (e) the observance of and compliance with applicable setback lines and easement areas and the enhancement of aesthetic views and visual corridors to and from the Common Properties; and DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 20 (f) the other standards set forth within this Declaration (and any amendments hereto) or as may be set forth within the Design Guidelines or matters in which the ARC has been vested with the authority to render a final interpretation and decision. The ARC is authorized and empowered to consider and review any and all aspects of construction, location and landscaping, which may, in the reasonable opinion of the ARC, adversely affect the living enjoyment of one or more Owner(s) or Residents or the general value of the Property. Also, the ARC is permitted to consider technological advances and changes in design and materials and such comparable or alternative techniques, methods or materials may or may not be permitted, in accordance with the reasonable opinion of the ARC. The following is a general outline of the steps likely to be involved in the review of plans and specifications: (a) Submit preliminary plans and specifications to the ARC; (b) Submit final plans and specifications to the ARC; and (c) Submit copy of budding permit to the ARC. The ARC may require as a condition precedent to any approval of the final plans and specifications, that the applicant obtain and produce an appropriate building permit from the City of College Station, Texas. The ARC is also authorized to coordinate with the City of College Station in connection with the applicant's observance and compliance of the construction standards set forth in this Declaration and the Design Guidelines. However, the mere fact that the City of College Station issues a building permit with respect to a proposed structure does not automatically mean that the ARC is obliged to unconditionally approve the plans and specifications. Similarly, the ARC's approval of any plans and specifications does not mean that all applicable building requirements of the City of College Station have been satisfied. Each and every owner and applicant shall use their respective best efforts to commence construction of all improvements approved by the ARC and the City of College Station, Texas (and any and all other applicable governmental agencies) within sixty (60) days after obtaining all necessary governmental approvals therefor and thereafter diligently pursue the project through to completion. 8.03 Design Guidelines. The ARC may from time to time, publish and promulgate additional or revised design guidelines, and such design guidelines shall be explanatory and illustrative of the general intent of the proposed development of the Property and are intended as a guide to assist the ARC in reviewing plans and specifications ( "Design Guidlines "). The ARC shall have the right, power and authority to establish and prescribe architectural restrictions and guidelines pertaining to items and topics such as (but not necessarily limited to): (a) A site plan showing the "footprint" of the building, location of all existing trees (indicate size and type) and proposed improvements, including but not limited to, structures, patios, driveways, parking areas and structures, fences and walls. (b) Exterior elevations of all proposed buildings and structures. (c) A description and samples of exterior materials, colors, textures and shapes of all buildings and structures. (d) Landscape plans, which shall include walkways, fences, walls, details, elevation changes, irrigation and watering systems, vegetation and ground cover (indicating size, spacing DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 21 and quantity), and the protection and preservation of trees and other existing and introduced vegetation. (e) Utility connections, including routing of electrical, gas, water, sanitary sewer, telephone cables and prewired CATV facilities. (f) Exterior illumination and location. (g) Dimensional floor plan of all enclosed spaces and any garages or parking facilities. (h) Smoke detector locations. (i) Mailbox location and design. (j) Drainage solutions. (k) Such other matters as may be required by the then applicable zoning and building codes of the City of College Station. (1) The items described within Section 8.03 above and any other data or information requested or deemed reasonably necessary by the ARC. PRIOR TO ACQUIRING ANY INTEREST IN A LOT, EACH PROSPECTIVE PURCHASER, TRANSFEREE, MORTGAGEE AND OWNER OF ANY LOT IN THE SUBDIVISION IS STRONGLY ENCOURAGED TO CONTACT THE DECLARANT OR ASSOCIATION OR THE ARC TO OBTAIN AND REVIEW THE MOST RECENT DESIGN GUIDELINES WHICH WILL CONTROL THE DEVELOPMENT, CONSTRUCTION AND USE OF THE LOT. 8.04 Preliminary and Final Plan Submissions. The ARC is authorized and empowered to and shall consider, review and comment on preliminary plans submitted in duplicate on an informal basis to assist Owners, developers, Homebuilders and prospective purchasers of the Lots in complying with these Covenants and to assist in the completion of any feasibility studies undertaken by such persons or entities. The ARC shall have the right, however, to prescribe reasonable limitations concerning the time, effort and expense likely to be involved in handling such matters on an informal basis. If the preliminary plans and specifications are approved by the ARC, the Owner or the Owner's designated representative will be so advised by letter. If found not to be in compliance with these Covenants, the Owner or the Owner's designated representative will be so advised by letter containing a reasonable statement and explanation of items found not to comply with these covenants. If the ARC fails to approve or disapprove such plans and specifications within thirty (30) days after the actual date on which the submission is received, approval of the matters submitted shall be presumed. Comments on and approvals of preliminary plans and specifications shall be binding upon the ARC provided that conforming final plans and specifications are submitted within ninety (90) days of such preliminary comments or approvals. Final plans, specifications and surveys shall be submitted in duplicate to the ARC for approval or disapproval. The ARC is authorized to request the submission of samples of proposed construction materials. At such time as the plans, specifications and surveys meet the approval of the ARC, one complete set of plans, specifications and surveys will be retained by the ARC and the other complete set will be marked "Approved" and returned to the Lot Owner or his designated representative. If found not to be in compliance with these Covenants, one set of such plans, specifications and surveys shall be returned marked "Disapproved," accompanied by a DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 22 reasonable statement and explanation of items found not to comply with these Covenants. Any modification or change to the approved set of plans, specifications and surveys must again be submitted to the ARC for its inspection and approval. The ARC's approval or disapproval, as required herein, shall be in writing. If the ARC fails to approve or disapprove such plans, specifications and surveys within thirty (30) days after the actual date on which the submission is received, then the ARC approval shall be presumed. The ARC may from time to time publish and promulgate architectural standards bulletins and /or lot information sheets which shall be fair and reasonable and shall carry forward the spirit and intention of these Covenants. Such bulletins and lot information sheets shall supplement these Covenants and are incorporated herein by reference. EACH OWNER SHALL SEEK AND OBTAIN AND BECOME THOROUGHLY FAMILIAR WITH ANY AND ALL ARCHITECTURAL STANDARDS BULLETINS AND LOT INFORMATION SHEETS PRIOR TO ACQUISITION OF, AND CONSTRUCTION ON, ANY LOT WITHIN THE SUBDIVISION. 8.05 General. The following declarations within this Section apply to the ARC. The ARC shall be entitled at any time and from time to time, to associate or employ a staff and to seek and obtain professional advice and counsel (including but not limited to architects, attorneys, designers, engineers and landscape technicians) in connection with the performance of its duties with all reasonable costs and expenses related thereto paid for or reimbursed by the Association. The Association may, in turn, reasonably recoup some or all of these expenses from the applicants seeking review and approval of plans and specifications. The Declarant and /or the Association and /or the ARC may require any Owner to restore such Owner's improvements or alteration to the condition existing prior to the construction thereof (including, without limitation, the demolition and removal of any unapproved improvement) if such improvements or alterations were commenced or constructed in violation of this Article. In addition, the Declarant and /or the Association and /or the ARC may, but has no obligation to do so, cause such restoration, demolition and removal and levy the amount of the cost thereof as a special individual assessment against the Lot upon which such improvements or alterations were commenced or constructed. A material violation of these Covenants shall be deemed to have occurred if no prior express written approval of the ARC has been obtained where it was originally required, even if hindsight reveals that the actual plans and specifications would have been approved by the ARC had they been properly and timely submitted. Neither Declarant, nor the Association, nor the ARC, nor the Board nor the officers, directors, managers, members, employees and agents of any of them, shall be liable in damages to anyone submitting plans and specifications to any of them for approval, or to any Owner of property affected by these restrictions by reason of mistake in judgment, negligence, or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any such plans or specifications. No approval of plans and specifications and no publication of any Design Guidelines, architectural bulletins or lot information sheets shall be construed as representing or implying that such plans, specifications, guidelines, bulletins or sheets will, if followed, result in properly designed improvements and /or improvements built in a good workmanlike manner. Every person or entity who submits plans or specifications, and every Owner of each and every Lot, agrees that he will not bring any action or suit against Declarant, the Association, the ARC, the Board, or the officers, directors, managers, members, employees and agents of any of them, to recover any such damages and hereby releases, remises and quitclaims all claims, demands and causes of action arising out of or in connection with any judgment, negligence or nonfeasance and hereby waives the provisions of any law which provides that a general release does not extend to claims, demands and causes of action not known at the time the release is given. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 23 After reasonable notice to the Owner (and any applicable Resident), any member or agent of the Committee may from time to time at any reasonable hour or hours enter and inspect any property subject to the jurisdiction of the ARC to confirm improvement or maintenance or alteration in compliance with the provisions hereof. No improvements or addition or change or alteration thereof shall be constructed, erected, placed, altered or maintained on any Lot which is in violation of any of the laws or ordinances of the City of College Station, Texas or any other applicable governmental laws, rules or regulations. However, Declarant, the Association, the ARC and their respective officers, directors, managers, agents and employees shall have no obligation to enforce or to report the violation of any such law, ordinance, rule or regulation. The ARC shall have the power to grant variances, waivers, tolerances or modifications of the standards set forth within the Covenants under circumstances and conditions deemed reasonable, appropriate and prudent by the ARC. Matters of "quality", "adequacy" and "propriety" are to be considered by the ARC generally from an aesthetic standpoint, rather than from an engineering standpoint. Plans and specifications are not reviewed or approved for engineering or structural design or technical quality of materials, and by approving such plans and specifications neither the ARC, nor the members thereof, nor the Association assumes liability or responsibility thereof, nor for any defect in any structure constructed from such plans and specifications. ARTICLE 9 GENERAL RESTRICTIONS All of the Property shall be owned, held, encumbered, leased, used, occupied and enjoyed subject to the following limitations and restrictions: 9.01 Construction of Improvements. No Improvements or Structures shall hereafter be constructed upon any of the Property without the prior approval of the ARC. 9.02 Antennae and Signals. No antenna or other device for the transmission or reception of television signals, radio signals, or any other form of electromagnetic radiation shall be erected, used, or maintained on any Lot, whether attached to a building or structure or otherwise, without the prior written approval of the ARC. No radio signals, television signals or any other form of electromagnetic radiation shall originate from any Lot so as to unreasonably interfere with the reception of television or radio signals on any other Lot. Notwithstanding the provisions of this paragraph to the contrary, it shall be permissible for the Owners of any Lot to have one small satellite dish no more than 18 inches in diameter for receipt of television signals provided it is not visible from any street. Notwithstanding the foregoing, the Declarant by promulgating this Section is not attempting to violate the Telecommunications Act of 1996 (the "Act "), as may be amended from time to time. This section shall be interpreted to be as restrictive as possible while not violating the Act. 9.03 Insurance Rates. Nothing shall be done or kept on a Lot which would increase the rate of insurance or cause the cancellation of insurance on any Lot or any of the Improvements located thereon without the prior written approval of the Board. 9.04 Subdividing. No Lot shall be further divided or subdivided, nor may any easement or other interest therein less than the whole be conveyed by the Owner thereof without the prior written approval of the ARC; provided, however, that when Declarant is the Owner thereof, Declarant may further divide and subdivide any Lot and convey an easement or other interest less than the whole, all without the approval of the ARC. 9.05 Signs. No sign of any kind shall be displayed to the public view on a Lot without the prior written approval of the ARC, except for signs which are part of Declarant's overall marketing plan for the Property. The ARC may permit signs of any type for security, political DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 24 speech or advertising a portion of the Property for sale or lease or it may set standards for the same. 9.06 Rubbish and Debris. No rubbish or debris of any kind shall be placed or permitted to accumulate upon a Lot and no odors shall be permitted to arise therefrom so as to render the Lot or any portion thereof unsanitary, unsightly, offensive or detrimental to any other property or to its occupants. Refuse, garbage and trash shall be kept at all times in covered containers and such containers shall be kept within enclosed structures or appropriately screened from view. If rubbish or debris accumulates upon any Lot in violation of this provision in the judgment of the Association, the Association may remove the rubbish or debris, and charge a special assessment to the Owner of the Lot. 9.07 Noise. No noise or other nuisance shall be permitted to exist or operate upon any Lot so as to be offensive or detrimental to any other portion of the Property or to its occupants. 9.08 Lighting. No exterior lighting of any sort shall be installed or maintained on a Lot where the Tight source is offensive or a nuisance to neighboring property, except for reasonable security or landscape lighting that has the approval of the Architectural Review Committee. 9.09 Nuisance and Lateral Support. No noxious or offensive activity or work shall be conducted upon any Lot so as to impair the structural soundness or integrity of any Improvement of any other Lot, or which may be or may become an annoyance or nuisance to the neighborhood. 9.10 Repair of Improvements. All Improvements upon the Property, including any Lot, shall at all limes be kept in good condition and repair and adequately painted or otherwise maintained by the Owner or Owners thereof. 9.11 Alteration or Removal of Improvements. Exclusive of normal maintenance, any construction or removal in connection with any Improvement which in any way alters the exterior appearance of said Improvement shall be performed only with the prior written approval of the ARC. 9.12 Roofing Materials. The surface of all roofs of principal and secondary structures shall be quality composition shingle. The ARC shall have authority to approve other roof treatments and materials when in its determination such treatments and materials in the form utilized will not be a detriment to the quality of the neighborhood. 9.13 Solar Equipment. In the event an Owner desires to use solar panels or other solar equipment in connection with the use of any Lot, the location and installation design thereof shall be submitted to the ARC and approval of such design, including the aesthetics thereof, shall be required before construction may begin. 9.14 Driveway. The ARC shall have the right to impose limitations on driveway design, including materials, aprons, location and point of contact with dedicated roads, streets or private driveways within the Property. 9.15 Tanks. The ARC shall have the right to approve the location of any tank used or proposed in connection with a single family residential structure, including tanks for storage of fuel, water, oil or LPG and including 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. 9.16 Underground Utility Lines. No utility lines, including, but not limited to, wires or other devices, for the communication or transmission of telephone or electric current or power, DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 25 cable television or any other type of line or wire shall be erected, placed or maintained anywhere in or upon any portion of the Property unless the same shall be contained in conduit or cables installed and maintained underground or concealed in, under or on Improvements as approved in writing by the ARC, except what has already been constructed by the City of College Station, prior to July, 2002; provided, however, that no provision hereof shall be deemed to forbid the erection of temporary power or telephone structures incident to the construction of Improvements which have been previously approved in writing by the ARC. The installation method, including but not limited to location, type of installation equipment, trenching method and other aspects of installation for both temporary and permanent utilities, shall be subject to review and approval by the ARC. 9.17 Drainage. There shall be no interference with the established drainage patterns over any of the Property, except by Declarant, unless adequate provision is made for property drainage and approved by the ARC. 9.18 Hazardous Activities. No activities shall be conducted on the Property and no Improvements shall be constructed on the Lot that are or might be unsafe or hazardous to any person or property. Without limiting the generality of the foregoing, no firearms or fireworks shall be discharged upon the Property, and no open fires shall be lighted or permitted except within safe and well designed interior fireplaces, or in contained barbecue units while attended and in use for cooking purposes. 9.19 Mining and Drilling. No oil drilling, oil development operations, oil refining, quarrying or mining operation of any kind shall be permitted upon or in any Lot, nor shall oil wells, tanks, tunnels, mineral excavations, or shafts be permitted upon any Lot. No derrick or other structure designed for use in boring for oil or natural gas shall be erected, maintained or permitted upon any Lot. 9.20 Machinery and Equipment. Without the approval of the Association or Declarant, no machinery or equipment of any kind shall be placed, operated or maintained upon or adjacent to any Lot or Common Area except such machinery or equipment as is usual and customary in Brazos County, Texas, in connection with the use, maintenance, or construction of a private residence or appurtenant structures or recreational facilities maintained by the Association; provided however, such machinery or equipment may be placed, operated or maintained by any governmental or quasi - governmental agency, or by a public utility, in the performance of its legitimate functions. 9.21 Temporary Structures. No tent, shack or other temporary building, improvement or structure shall be placed upon a Lot without the prior written approval of the ARC; provided however, that the Declarant may maintain or authorize temporary structures necessary for storage of tools and equipment, and for office space for architects, builders and foremen on the Property during any period of actual construction, which authorization, if given, shall include the nature, size, duration and location of such structure or structures. 9.22 Unsightly Articles; Vehicles; Number of Occupants. No trailer, recreational vehicle, tent, boat, or stripped down, wrecked, junked, or wholly inoperable vehicle shall be kept, parked, stored, or maintained on any portion of the driveway or front yard in front of the building line of the permanent structure, and same shall be kept, parked, stored or maintained on other portions of a Lot only within an enclosed structure or a screened area which prevents the view thereof from adjacent Lots or streets. No dismantling or assembling of motor vehicles, boats, trailers, recreational vehicles, or other machinery or equipment shall be permitted in any driveway or yard adjacent to a street. No more than two (2) unrelated occupants may reside in any Dwelling Unit. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 26 9.23 Mobile Homes, Travel Trailers, Recreational Vehicles. No mobile homes shall be parked or placed on any Lot at any time. No travel trailers or recreational vehicles may be kept on any Lot unless it is enclosed in a garage or is 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 location of its storage site must be approved by the ARC. 9.24 Fences. (a) No fence, wall, or hedge shall be built or maintained forward of the front wall Tine 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 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 ARC is empowered to waive the aforesaid height or setback limitation in connection with retaining walls and decorative walls if, in its sole discretion, such waiver is advisable in order to accommodate a unique, attractive or advanced building concept design or material and the resulting decorative wall and /or retaining wall will not detract from the general appearance of the neighborhood, 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) No fence may be built on a Lot that does not comply with the Design Guidelines issued by the ARC. Declarant, in its sole discretion and expertise, may erect wrought iron fencing on the rear boundary of any Lot, and the Owner of the Lot shall be responsible for maintenance and repair of the fence once erected. 9.25 Animals - Household Pets. No animals, including pigs, hogs, swine, poultry, wild animals, horses, cattle, sheep, goats or any other type of animal not considered to be a domestic household pet within the ordinary meaning and interpretation of such words may be kept or maintained on the Property. No domestic household pet shall be allowed to make an unreasonable amount of noise, or to become a nuisance, and no domestic pets shall be allowed on the Property other than on the Lot of its Owner, except when confined to a leash. No animal may be stabled, maintained, kept, cared for or boarded for hire or remuneration on the Property and no kennels or breeding operation shall be allowed. No domestic household pet shall be allowed to run at large and aH of such pets shall be kept within enclosed areas which must be clean, sanitary and reasonably free of refuse, insects and waste at all times. Such enclosed area shall be constructed in accordance with Plans and Specifications approved by the ARC, shall be of reasonable design and construction to adequately contain such animals in accordance with the provisions hereof, and shall be screened so as not to be visible from any other portion of the Property. No more than three (3) adult dogs and three (3) adult cats may be kept on a single Lot. All domestic household pets shat be kept in strict accordance with all local laws and ordinances. 9.26 Landscape Design. All landscaping shall be designed so as to protect and promote, as far as practicable, the natural local landscape environment through use of native materials, natural drainage, indigenous plant selection and site design. All landscaping designs shall install live, growing sod covering the front, side and backyards, within thirty (30) days of occupancy of any residence constructed on a Lot, and shall maintain it in a healthy and growing condition. All front, side and back yards must be irrigated with automatic sprinkler systems, and have landscaping acceptable to the ARC. At all times after improvements are constructed on any Lot, the Owner of such Lot shall keep and maintain at least three living trees with diameters of two (2) inches in the front yard of the Lot. Any new trees planted by the Owner of a Lot in the front yard shall be . No live trees with a diameter of three (3) inches or greater shall be removed from a Lot without the approval of the ARC. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 27 9.27 Construction and Sales Activities. Notwithstanding any provision herein to the contrary, this Declaration shall not be construed so as to unreasonably interfere with or prevent normal construction activities during the construction of Improvements by an Owner (including Declarant) upon any Lot within the Property, or the sale of any Lot thereafter. Specifically, no such construction activities shall be deemed to constitute a nuisance or a violation of this Declaration by reason of noise, dust, presence of vehicles or construction machinery, posting of signs or similar activities, provided that such construction is pursued to completion with reasonable diligence and conforms to usual construction practices in the area. No budding material of any kind shall be placed or stored upon any Lot until the Owner thereof is ready to commence Improvements, and then the material shall be placed within the property lines of the Lot upon which the Improvements are to be erected and shall not be placed on the street or on any other part of the Property. In the event of any dispute regarding such matters, a temporary waiver of the applicable provision may be granted by the ARC, provided that such waiver shall be only for the reasonable period of such construction. At such time as the Declarant ceases using any portion of the Property as a model home or sales office, the affected Property shall be altered and /or remodeled, if necessary or desirable, to comply with the covenants and restrictions contained herein. 9.28 Mailboxes. Mailboxes shall be of materials set out in the Design Guidelines or such other materials approved by the ARC, and shall be located on individual Lots. 9.29 Sight Lines. No fence, wall, hedge, or shrub planting which obstructs sight lines from streets on the Property shall be placed or permitted to remain on any corner Lot within the area defined by a line drawn between two points located _____ feet from the point of intersection of the street right -of -way property lines immediately adjacent to the Lot, as reasonably located by the ARC. 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. 9.30 Garage Conversions. No garage, or any portion thereof, may be converted into enclosed living space unless an alternative garage of at least equal size is constructed and the plans and specifications for the conversion and construction are first approved in writing by the ARC. 9.31 Use of Common Properties. On any Common Properties on the Property, the Board may establish rules and regulations for use or prohibitions against use from time to time. 9.32 Compliance with Provisions of this Declaration. Each Owner shall comply strictly with the provisions of this Declaration as the same may be amended from time to time. Failure to comply with any of the Covenants shall constitute a violation of this Declaration, and shall give rise to a cause of action to recover sums due for damages or injunctive relief or both, maintainable by the Board on behalf of the Association or by any aggrieved Owner. Declarant, for itself, its successors or assigns, reserves the right to enforce 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. 9.33 No Warranty of Enforceability. While Declarant has no reason to believe that any of the restrictive covenants or other terms and provisions contained in this Article 9 or elsewhere in this Declaration are or may be invalid or unenforceable for any reason or to any extent, Declarant makes no warranty or representation as to the present or future validity or enforceability of any such restrictive covenants, terms or provisions. Any Owner acquiring a Lot in reliance upon one or more of such restrictive convents, terms or provisions shall assume all risks of the validity and enforceability thereof and, by acquiring the Lot, agrees to hold Declarant harmless therefrom. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 28 ARTICLE 10 RESIDENTIAL RESTRICTIONS 10.01 Residential Use. All Lots shall be improved and used solely for residential purposes, inclusive of a garage, fencing and such other Improvements as are necessary or customarily incident to residential use. No Owner shall occupy or use his Lot or any Improvements constructed thereon, or permit the same or any part thereof to be occupied or used for any purpose, including religious, other than as a private residence for the Owner, his family and guests. All Lots within the Property shall be used and improved solely for single - family residential purposes, with no more than one (1) residential Dwelling Unit per Lot. Anything herein to the contrary notwithstanding, any Lot may be used or improved for greenbelt, open space and /or drainfield purposes. No Improvement 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 ARC review. The ARC 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 ARC may consider the effect the Improvement will have on the Property as a whole, it being expressly understood that neither the ARC 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. 10.02 Garages and Garage Orientation. No Lot shall have improvements erected which do not provide for a minimum of a two vehicle garage. No garage on any Lot shall be constructed so that the overhead doors face the street on which the associated Dwelling Unit is located. 10.03 Outbuildings. Every outbuilding, inclusive of such structures as a detached garage, storage building or greenhouse, shall be compatible with the Dwelling Unit to which it is appurtenant in terms of its design and material composition. All such buildings shall be subject to approval by the ARC. In no instance shall an outbuilding, other than a detached garage, exceed one (1) story in height, have total floor area in excess of ten percent (10 %) of the floor area of the main Dwelling Unit, or be visible from any of the streets in the Subdivision. 10.04 Building Materials; Dwelling Size. All multi - family dwellings shall be of recognized standard construction quality, and all exteriors (exclusive of doors, windows, and similar openings) shall be constructed of materials specified in the Design Guidelines or otherwise specifically approved in writing by the ARC. Unless an exception is granted by the ARC, Dwelling Units shall contain not Tess than the following square feet of enclosed living space, exclusive of porches (open or covered), decks, garages and carports: Lots 7 - 11, Block 1 and Lots 1 - 5, Block 2 2,400 square feet Lots 1 - 6, Block 1 and Lots 6 - 12, Block 2 3,000 square feet 10.05 Construction in Place. The use of prefabricated materials, including antique homes moved from other locations, will be allowed only with the prior written approval of the ARC. 10.06 Set -back Requirements. No building shall be located or erected nearer to any Lot line than the building line shown on the recorded plat of the Property. For purposes of these covenants, the eaves of buildings shall not be deemed to be part of a building or structure, but steps and porches shall be deemed to be a part of a building or structure. This Section shall not be construed to allow any building or structure to encroach upon another Lot. 10.07 Landscaping; Maintenance. Construction of each and every residential Dwelling Unit on a Lot shall include the installation and placement of appropriate landscaping. Each DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 29 Owner, Member and Resident of any Lot shall jointly and severally have the duty and responsibility, at their sole cost and expense, to keep and maintain the Lot, and all improvements therein and thereon, in a well maintained, safe, clean and attractive condition at all times. Such maintenance shall include (without limitation): (a) the proper seeding, consistent watering and mowing of all lawns; (b) the pruning and cutting of all trees and shrubbery; (c) prom pt removal of all litter, trash, refuse and waste; (d) watering of all landscape; (e) keeping exterior lighting and mechanical facilities in working order; (f) keeping lawn and garden areas alive, free of weeds and attractive; (g) keeping driveways in good repair and condition; (h) promptly repairing any exterior damage; complying with all governmental health and police requirements; all in a manner and with such frequency as is consistent with aesthetics, safety and good property management. The Association and its agents, during normal business hours, shall have the right (after 5 days written notice to the Owner of any Lot involved, setting forth the specific violation or breach of this covenant and the action required to be taken, and if at the end of such time reasonable steps to accomplish such action have not been taken by the Owner), to enter on the subject premises (without any lability whatsoever for damages for wrongful entry, trespass or otherwise to any person or entity) and to take the action(s) specified in the notice to remedy or abate said violation(s) or breach(es). The cost of such remedy or abatement will be paid to the Association upon demand and if not paid within thirty (30) days thereof, shall become a lien upon the Lot affected subject to the requirements of Chapter 209, Texas Property Code. The Association, or its agent, shall further have the right (upon like notice and conditions), to trim or prune, at the expense of the Owner, any hedge, tree or any other planting that, in the written opinion of the Association, by reason of its location on the Lot, or the height, or the manner in which it is permitted to grow, is detrimental to the adjoining Lots, is dangerous or is unattractive in appearance. The lien provided under this section will constitute a lien retained against such property with the same force and effect as the Payment and Performance Lien for assessment set forth in these Covenants. ARTICLE 11 EASEMENTS 11.01 Reserved Easements. All dedications, limitations, restrictions, and reservations shown on any plat covering all or any portion of the Property and all grants and dedications of easements, rights -of -way, restrictions, and related rights made by Declarant prior to the Property becoming subject to this Declaration, are incorporated herein by reference and made a part of this Declaration for all purposes as if fully set forth herein, and shall be construed as being adopted in each and every contract, deed or conveyance executed or to be executed by or on behalf of Declarant conveying any part of the Property. Declarant reserves the right to make changes in and additions to the said easements and rights -of -way for the purpose of most effectively, efficiently and economically developing and marketing the Property. Further, Declarant reserves the right, without the necessity of the joinder of any Owner or other person or entity, to grant, dedicate, reserve or otherwise create, at any time or from time to time, Common Properties, DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 30 rights -of -way and easements for public utility purposes (including, without limitation, gas, cable, water, electricity, telephone and drainage), in favor of any person or entity, along and on either or both sides of any Lot line, any such easement having a maximum width of seven and one -half (7- 1/2) feet on each side of such Lot line. 11.02 Installation and Maintenance. Easements for installation and maintenance of utilities and drainage facilities are reserved as shown on the recorded plat of the Property. Within these easements, if any, no structure or other material shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities; or in the case of drainage easements, which may change the direction of flow of water through drainage channels in such easements. The easement area of each Lot, if any, and all Improvements in such area shall be maintained continuously by the Owner of the Lot, except for those Improvements for which a public authority or utility company is responsible. Neither Declarant nor any utility company using the easements herein or referred to shall be liable for any damages done by them or their assigns, agents, employees, or servants to shrubbery, streets or flowers or other property of the Owners situated on the land covered by said easements. 11.03 Surface Areas. The surface of easement areas for underground utility services may be used for planting of shrubbery, trees lawns or flowers. However, neither the Declarant nor any supplier of any utility service using any easement area shall be liable to any Owner or to the Association for any damage done by them or either of them, or their respective agents, employees, servants or assigns, to any of the aforesaid vegetation as a result of any activity reasonably relating to the construction, maintenance, operation or repair of any facility in any such easement area. 11.04 Drainage Easements. Each Owner covenants to provide easements for drainage and water flow, as contours of land and the arrangement of Improvements approved by the ARC thereon require. Each Owner further covenants not to disturb or displace any trees or other vegetation within the drainage easements as defined in this Declaration and shown on the recorded plat of the Property. There shall be no construction of improvements, temporary or permanent, in any drainage easement, except as may be approved in writing by the ARC. 11.05 Blanket Easement. An easement is hereby retained in favor of the Association over all Lots and the Common Properties for the purpose of enforcing the Covenants in accordance with Section 11.05 hereof, and for the construction of a common cable television system, a common sprinkler system, maintenance of landscaping, or any other item for the common benefit of the Owners. An easement is further granted for the purpose of repairing and maintaining any such system so constructed. An entry upon any Lot or the Common Properties to effectuate the foregoing purposes shall not be deemed as trespass. ARTICLE 12 REGISTRATION 12.01 Registration with the Association. In order that the Declarant and the Association can properly acquaint every Lot purchaser and every Owner, Resident and Member with these Covenants and the day -to -day matters within the Association's jurisdiction, each and every Owner, Member and Resident shall have an affirmative duty and obligation to originally provide, and thereafter revise and update, within fifteen (15) days after a material change has occurred, various items of information to the Association such as: (a) the full name and address of each Owner, Member and Resident; (b) the full name of each individual family member who resides within the residential dwelling of the Lot Owner; DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 31 (c) the business address, occupation and telephone numbers of each Resident; (d) the description and license plate number of each automobile owned or used by a Resident and brought within the Property; (e) the name, address and telephone numbers of other local individuals who can be contacted (in the event the Resident cannot be located) in case of an emergency; and (f) such other information as may be reasonably requested from time to time by the Association. In the event any Owner, Member or Resident fails, neglects or refuses to so provide, revise and update such information, then the Association may, but is not required to, use whatever means it deems reasonable and appropriate to obtain such information and the offending Owner, Member and Resident shall become automatically jointly and severally liable to promptly reimburse the Association for all reasonable costs and expenses incurred in so doing. ARTICLE 13 GENERAL PROVISIONS 13.01 Power of Attorney. Each and every Owner, Member and Resident hereby makes, constitutes and appoints Declarant as his /her true and lawful attorney -in -fact, coupled with an interest and irrevocable, for him /her and in his/her name, place and stead and for his/her use and benefit, to do the following: (a) to exercise, do or perform any act, right, power, duty or obligation whatsoever in connection with, arising out of, or relating to any matter whatsoever involving this Declaration and the Property; (b) to sign, execute, acknowledge, deliver and record any and all instruments which modify, amend, change, enlarge, contract or abandon the terms within this Declaration, or any part hereof, with such clause(s), recital(s), covenant(s), agreement(s) and restriction(s) as Declarant shall deem necessary, proper and expedient under the circumstances and conditions as may be then existing; and (c) to sign, execute, acknowledge, deliver and record any and all instruments which modify, amend, change, enlarge, contract or abandon the subdivision plat(s) of the Properties, or any part thereof, with any easements and rights -of -way to be therein contained as the Declarant shall deem necessary, proper and expedient under the conditions as may then be existing. The rights, powers and authority of said attorney -in -fact to exercise any and all of the rights and powers herein granted shall commence and be in full force upon recordation of this Declaration in the Brazos County Clerk's Office and shall remain in full force and effect thereafter until conclusion of the Development Period. 13.02 Further Development. During the Development Period, each and every Owner, Resident and Member waives, relinquishes and shall not directly or indirectly exercise any and all rights, powers or abilities, and the Association shall not devote or expend any monies or personnel, regarding the following: to contest, object, challenge, dispute, obstruct, hinder or in any manner disagree with the proposed or actual development (including, without limitation, zoning or rezoning efforts or processes) pertaining to residential uses of any real property owned by the Declarant or by the affiliates, assignees or successors of the Declarant within a one -half mile radius of the Subdivision. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 32 13.03 Duration. The Covenants of this Declaration shall run with and bind the land subject to this Declaration, and shall inure to the benefit of and be enforceable by the Association and/or Owner and Resident of any land subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for an original fifty (50) year term expiring on the fiftieth (50th) anniversary of the date of recordation of this Declaration, after which time these Covenants shall be automatically extended for successive periods of ten (10) years unless an instrument is signed by the Owners of at least fifty-one percent (51%) of all Lots within this Subdivision and all the Subdivisions and recorded in the Official Records of Brazos County, Texas, which contains and sets forth an agreement to abolish these Covenants; provided, however, no such agreement [where approved by less than seventy-five percent (75 %) of the Owners of all Lots within this Subdivision] to abolish shall be effective unless made and recorded one (1) year in advance of the effective date of such abolishment. 13.04 Amendments. (a) By Declarant. During the Development Period, this Declaration may be amended by the Declarant, acting alone. No amendment by Declarant shall be effective until there has been recorded in the Official Records of Brazos County, Texas, an instrument executed and acknowledged by Declarant and setting forth the amendment, and an instrument executed and acknowledged by the Secretary of the Association, certifying that the Declarant had the requisite number of votes. (b) By Owners. After the Development Period, this Declaration may be amended by the recording in the Official Records of Brazos County of an instrument executed and acknowledged by the President and Secretary of the Association setting forth the amendment and certifying that such amendment has been approved by Owners entitled to cast at least sixty percent (60°%) of the number of votes entitled to be cast pursuant to Section 3.02 hereof. 13.05 Enforcement. Each Owner of each Lot shall be deemed, and held responsible and liable for the acts, conduct and omission of each and every Resident, Member, guest and invitee affiliated with such Lot, and such liability and responsibility of each Owner shall be joint and several with their Resident(s), Member(s), guests and invitees. The Payment and Performance Lien shall extend to, cover and secure the proper payment and performance by each and every Resident, Member, guest and invitee affiliated with each Owner. Each Owner may, upon appropriate application to and approval by the Association, impose greater or additional restraints and restrictions on the "good standing" qualifications of the Residents and Members of such Owner's Lot. Unless otherwise prohibited or modified by law, all parents shall be liable for any and all personal injuries and property damage proximately caused by the conduct of their children (under the age of 18 years) within the Property. Enforcement of these Covenants may be initiated by any proceeding at law or in equity against any person or persons violating or attempting to violate them, whether the relief sought is an injunction or recovery of damages, or both, or enforcement of any lien created by these Covenants; but failure by the Association or any Owner to enforce any Covenant herein contained shall in no event be deemed a waiver of the right to do so thereafter. The City of College Station, Texas is specifically authorized (but not obligated) to enforce these Covenants. With respect to any litigation hereunder, the prevailing party shall be entitled to recover all costs and expenses, including reasonable attorneys' fees, from the non - prevailing party. 13.06 Validity. Violation of or failure to comply with these Covenants shall not affect the validity of any mortgage, bona fide lien or other similar security instrument which may then be existing on any Lot. Invalidation of any one or more of these Covenants, or any portions thereof, by a judgment or court order shall not affect any of the other provisions or covenants herein contained, which shall remain in full force and effect. In the event any portion of these Covenants conflicts with mandatory provisions of any ordinance or regulation promulgated by the City of DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 33 College Station (including, without limitation, the Zoning Ordinance), then such municipal requirement shall control. 13.07 Proposals of Declarant. The proposals of the Declarant, as set forth in various provisions hereinabove, are mere proposals and expressions of the existing good faith intentions and plans of the Declarant and shall not be deemed or construed as promises, solicitations, inducements, contractual commitments or material representations by the Declarant upon which any person or entity can or should rely. Nothing contained in or inferable from this Declaration shall ever be deemed to impose upon any other land owned or to be owned by the Declarant, or any related entity, any covenants, restrictions, easements or liens or to create any servitudes, negative reciprocal easements or other interests in any such land in favor of any person or entity other than the Declarant. Declarant makes no representations of any kind or character concerning any land parcels adjoining the Property. Each prospective Owner should make his /her own investigation concerning those parcels and what impact, if any, same may have on the ownership, use and enjoyment of the Properties. 13.08 Service Mark. Declarant is exclusive licensee of a service mark for University Preserve (referred to as the "Service Mark ") in the Brazos County, Texas area. Unless and until a written license agreement has been sought and obtained from Declarant (and in this connection Declarant may withhold consent in its sole and absolute discretion), no person or entity may at any and /or for any reason whatsoever use, depict, draw, demonstrate, reproduce, infringe, copy or resemble, directly or indirectly, the Service Mark. 13.09 Headings. The headings contained in this Declaration are for reference purposes only and shall not in any way affect the meaning or interpretation of this Declaration. Words of any gender used herein shall be held and construed to include any other gender, and words in the singular shall be held to include the plural and vice versa, unless the context requires otherwise. Examples, illustrations, scenarios and hypothetical situations mentioned herein shall not constitute an exclusive, exhaustive or limiting list of what can or cannot be done. 13.10 Notices to Resident /Member /Owner. Any notice required to be given to any Resident, Member or Owner under the provisions of this Declaration shall be deemed to have been property delivered when: (i) deposited in the United States Mail, postage prepaid, addressed to the last known address of the person who appears as the Resident, Member or Owner on the records of the Association at the time of such mailing; or when (ii) delivered by hand or by messenger to the last known address of such person within the Property; or when (iii) posted on the Association's bulletin board for at least thirty (30) consecutive calendar days. 13.11 Notices to Mortgagees. The holder(s) of a mortgage may be furnished with written notification from the Association of any default by the respective mortgagor /Member /Owner in the performance of such mortgagor's /Member's /Owner's obligation(s) as established by this Declaration, provided that the Association has been theretofore furnished, in writing, with the correct name and address of such mortgage holder(s) and a request to receive such notification and a reasonable supply of self- addressed, stamped envelopes. 13.12 Disputes. Matters of dispute or disagreement between Owners, Residents or Members with respect to interpretation or application of the provisions (excluding architectural matters which are to be approved by the ARC) of this Declaration or the Association Bylaws, shall be determined by the Board of Directors. Matters pertaining to architectural matters shall be determined by the Architectural Review Committee. These respective determinations (absent arbitrary and capricious conduct or gross negligence) shall be final and binding upon all Owners, Residents and Members. 13.13 Enforcement and Nonwaiver. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 34 (a) Right of Enforcement. Except as otherwise provided herein, any Owner at his own expense, Declarant, and /or the Board shall have the right to enforce any and all of the provisions of this Declaration. Such right of enforcement shall include both damages for, and injunctive relief against, the breach of any such provision. (b) Nonwaiver. The failure to enforce any provision of this Declaration at any time shall not constitute a waiver of the right thereafter to enforce any such provision or any other provision of said restrictions. (c) Liens. The Association shall have the right, when appropriate in its judgment and subject to Chapter 209 of the Texas Property Code, to claim or impose a lien upon any Lot or Improvement constructed thereon in order to enforce any right or effect compliance with this Declaration. 13.14 Assignment by Declarant. Notwithstanding any provision in this Declaration to the contrary, Declarant may assign, in whole or in part, any of its privileges, exemptions, rights, and duties under this Declaration to any other person or entity and may permit the participation, in whole or in part, by any other person or entity in any of its privileges, exemptions, rights, and duties hereunder. 13.15 Exemption of Declarant. Notwithstanding any provision in this Declaration to the contrary, neither Declarant nor any of Declarant's activities shall in any way be subject to the control of or under the jurisdiction of the Architectural Review Committee. Without in any way limiting the generality of the preceding sentence, this Declaration shall not prevent or limit the right of Declarant to excavate and grade, to construct and alter drainage patterns and facilities, to construct any and all other types of Improvements, sales and leasing offices, and similar facilities, and to post signs incidental to construction, sales, and leasing anywhere within the Property. 13.16 Interpretation. The provisions of this Declaration shall be liberally construed to effectuate the purposes of creating a uniform plan for the development and operation of the property and of promoting and effectuating the fundamental concepts of the Property set forth in this Declaration. 13.17 Construction. (a) Restrictions Severable. The provisions of Declaration shall be deemed independent and severable, and the invalidity or partial invalidity of any provision or portion thereof shall not affect the validity or enforceability of any other provision or portion thereof. (b) Singular Includes Plural. Unless the context requires a contrary construction, the singular shall include the plural and the plural the singular; and the masculine, feminine or neuter shall each include the masculine, feminine, and neuter. (c) Captions. All captions and titles used in this Declaration are intended solely for convenience of reference and shall not enlarge, limit or otherwise affect that which is set forth in any of the paragraphs, sections or articles. (d) Deadlines on Business Day. If any deadline in this Declaration should fall on a Saturday, Sunday or a Texas or federal holiday, such deadline shall automatically be extended to the next business day. (e) Choice of Law. This Declaration shall be construed in accordance with the laws of the State of Texas. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 35 Y Witness the hand of an authorized representative of Declarant on the acknowledgment date noted below. Crux Financial Services, Inc. By: Switzer Deason, President DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 36 1 THE STATE OF TEXAS § (ACKNOWLEDGMENT) COUNTY OF BRAZOS § This instrument was acknowledged before me on the ____ day of July, 2002, by Switzer Deason, President of Crux Financial Services, Inc., a Texas corporation, on behalf of said corporation. Notary Public, State of Texas DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION Page 37 r (2 d)10 NOTICE OF PUBLIC HEARING: The College Station Planning and Zoning Commission will hold a public hearing to consider a REPLAT for Lots 1 -11, Block 1 and Lots 1 -13, Block 2, consisting of 2.9 acres in the UNIVERSITY PRESERVE SUBDIVISION, to allow for the addition of two (2) single family lots. The hearing will be held in the Council Room of the Col- lege Station City Hall, 1101 Texas Avenue at the 7:00 p.m. meeting of the Commission on Thursday, MARCH 18, 2004. Any request for sign interpretive services for the hearing impaired must be made 48 hours before the meeting. To make arrangements call (979) 764 -3547 or (TDD) 1- 800- 735 -2989. For additional information, please contact me at (979) 764 -3570. SPENCER TCO N 64_ GRADUATE CIVIL IL ENGINEER 3 -2 -04