This Declaration of Covenants, Conditions, Easements and Restrictions of Frio Vista Ranch (this “Declaration”) is made on the day of __________________, 2007, by Scott Smith and Sheila Sorensen Smith, husband and wife (collectively referred to herein as “Declarant”).
A. Declarant is the owner of all that certain real property (“the Property”) located in Real County, Texas, described as follows:
Tracts 1 to 24 of Frio Vista Ranch, a subdivision located in Real County, Texas, as more completely described in the plat recorded in Volume 1, Page 155 of the Plat Records of Real County, Texas, as amended by the re-subdivision plat recorded in Volume 1, Page 156 of the Plat Records of Real County, Texas (as amended and as may be further amended from time to time hereafter, the “Plat”), being more particularly described in Exhibit “A” attached hereto and made a part hereof for all purposes. Individually numbered tracts or parcels of land referenced on the Plat, other than the tract or parcel of land referenced on the Plat as Tract 17, are referred to herein individually as a “Tract” and collectively as the “Tracts.” The tract or parcel of land referenced on the Plat as Tract 17 is referred to herein as the “River Crossing.”
B. Each owner of any interest in any Tract is referred to herein as an “Owner.”
C. Declarant has devised a general plan for the development of the Property as a whole, with specific provisions for particular parts and tracts of the Property. This general plan provides a common scheme of development designed to perpetuate the natural environment of the Property, preserve and propagate the wildlife on the Property for the use of the Owners, and protect and safeguard the value of the Property.
D. This general plan will benefit the Property in general, each Tract, Declarant, each Owner, and each successive owner of an interest in the Property or any Tract.
E. This general plan imposes covenants, conditions, easements, and restrictions on the River Crossing that are different from the restrictions imposed on the Tracts.
F. Certain improvements are in existence on the Property as of the date hereof.
COVENANTS, CONDITIONS, EASEMENTS AND RESTRICTIONS
NOW THEREFORE, in accordance with both the doctrines of restrictive covenant and implied equitable servitude, Declarant hereby restricts the Property according to the following covenants, conditions, easements and restrictions in furtherance of this general development plan for the Property and declares that all of the Property and each Tract shall from and hereafter the date hereof be held, sold, and conveyed subject to the following covenants, conditions, easements and restrictions:
1. Each Tract and the River Crossing is subject to all of the covenants, conditions, easements and restrictions set forth in this Declaration, shown on the Plat, or filed of record in the real property records of Real County, Texas, and each Owner shall be deemed to have taken notice of all such covenants, conditions, easements and restrictions; provided, however, that notwithstanding the matters set forth in this Declaration, any improvements in existence on the Property as of the date hereof are deemed to be in compliance with the terms and conditions of this Declaration.
2. The River Crossing will be used only for vehicular and pedestrian ingress and egress. No improvements, other than a road, a bridge, and improvements ancillary to a road and a bridge, are permitted on the River Crossing.
3. Declarant reserves from each Tract a twenty (20) foot wide easement along and parallel to the west edge of the Frio River at normal flow, but not to extend outside the 100 year flood plain or onto any bluff on the Property (the “Walking Easement”), for the benefit of all Owners and their guests as well as Declarant and Declarant’s assigns. The Walking Easement may be used only for the purpose of pedestrian traffic, and then only so as not to interfere with any Owner’s rights and privileges as to his or her Tract, such as but not limited to fishing and family/social gatherings. No animals other than household pets are allowed on the Walking Easement, and each Owner is responsible for cleaning up any waste on the Walking Easement or other portion of the Property caused by such Owner’s animal. No vehicle may be parked or operated on the Walking Easement for any reason. Each Owner shall be responsible, at his own expense, for maintaining and providing casualty and liability insurance as to that portion of the Walking Easement located on such Owner’s Tract.
4. The operation of battery powered golf carts and gasoline powered golf carts that do not create a noise nuisance on the Property (but not within the Walking Easement) by adults over 18 years of age is permitted, but the operation of four wheelers, all terrain, motorcycles, go carts or other motorized vehicles (other than cars, trucks and similar motor vehicles approved and licensed for travel on public streets) on the Property is strictly prohibited.
5. Declarant reserves from each Tract and from the River Crossing a ten (10) foot wide easement and building setback line along and parallel to each boundary line of such tract, and along and parallel to each public roadway on or adjacent to the Property (the “Utility Easement”), for the benefit of Declarant and each Owner. The Utility Easement may be used for the purposes of (i) installing and maintaining water, electric, telephone and other utility lines, poles and/or anchor systems, (ii) cutting and/or trimming trees, bushes, shrubs and other vegetation within or adjacent to the Utility Easement which at any time interfere or threaten to interfere with such lines, poles and/or anchor systems, and (ii) ingress and egress by employees, agents and/or contractors of utility companies owning or maintaining such lines, poles and/or anchor systems. No vehicle may be parked on the Utility Easement unless such vehicle is temporarily parked for the purpose of providing utilities, police, fire protection or other services to a Tract. No building, fence or other improvement shall encroach on any portion of the Utility Easement.
6. No Tract may be subdivided. The River Crossing may not be subdivided.
7. An Owner may consolidate one or more adjoining Tracts into one building site, in which event the Utility Easement shall be measured from the resulting property lines of such combined building site rather than from the boundary lines of each Tract (as shown on the Plat) included in such building site; provided, however, that no consolidation of adjoining Tracts shall alter the Utility Easement as it exists along and parallel to each road in or adjacent to the Property. The River Crossing may not be consolidated with a Tract.
8. No oil, gas or other mineral exploration of any type is permitted on the Property.
9. Water located on or under the Property shall be for domestic and wildlife use only. No commercial underground development of water resources is permitted on the Property.
10. Each Owner must maintain the current fence on such Owner’s Tract, or may construct a new fence with that Tract’s boundary with U.S. Highway 83 not to exceed four (4) feet in height, and thereafter maintain such fence in good condition and repair. All fences shall be of cedar rails, pipe, stone and/or combination thereof or other material approved by Declarant or any duly formed homeowners association with regard to the Property (if any, the “Homeowners Association”). No side or rear fences may exceed four (4) feet in height. All fences and walls are to be maintained at the expense of the Owner(s) on whose property such fences or walls are located. Declarant and the Homeowners Association are each specifically empowered to grant variances to the aforesaid composition requirements for fences and the aforesaid height or setback limitations in connection with fences and walls.
11. No activity or use of any Tract or the River Crossing or the erection or maintenance of any structure on any Tract or the River Crossing which violates in any way any law, statute, ordinance, regulation or rule of any governmental entity with applicable jurisdiction shall be permitted. Noxious or offensive activity shall not be permitted on any Tract, nor anything done thereon which may become an annoyance or nuisance to any Owner or any resident on any Tract in the Property (a “Resident”).
12. No gasoline or other internal combustion engine is permitted to operate on any part of the Frio River or other waterways within or adjacent to the boundaries of the Property.
13. No modification of existing topography of any Tract or the River Crossing shall be permitted which would result in the ponding or accumulation of surface water on any other Tract, the Walking Easement, or any public roadway on or adjacent to the Property.
14. No hunting or discharging of firearms or any other device capable of killing, injuring or causing property damage is permitted on the Property.
15. No trash, garbage, refuse, used lumber, or unsightly items may be maintained, kept, thrown, dumped, or otherwise disposed of on any Tract or the River Crossing. Trash, garbage and other waste for pickup must be kept in containers in an enclosed structure that is shielded from view from U.S. Highway 83, any other Tract, the River Crossing, and the Walking Easement, and protected from scattering by animals or other means.
16. No inoperative vehicle or equipment shall be permitted to remain on any Tract longer than sixty (60) days after the vehicle or equipment becomes inoperative. No inoperative vehicle or equipment shall be permitted to remain on the River Crossing longer than twelve (12) hours after the vehicle or equipment becomes inoperative.
17. Generally recognized household/family pets of a reasonable number shall be permitted on a Tract provided they are not kept or maintained for commercial purposes. No swine, poultry, game chickens, emus, ostriches, exotic or dangerous pets of any type (i.e. pit bulls, boa constrictors, etc.) are permitted on any Tract. 4-H or FFA livestock projects (other than those described above) shall be permitted provided they are fed and kept in confinement until the date of their respective competition. Any pet which endangers any Owner or Resident or which creates a nuisance or unreasonable disturbance or is not a common household pet must be removed from the Property within seven (7) days’ after written notice.
18. All tents, travel trailers, motor homes, other recreational vehicles, and temporary or transient style shelters (collectively referred to herein as “Temporary Shelters”) on the Property must be stored within applicable setback lines and fully screened from view from U.S. Highway 83, any other Tract, the River Crossing, and the Walking Easement. No overnight stay in any Temporary Shelter is permitted on the Property, except under the following terms and conditions:
(a) “Overnight Event” means a period of overnight stay by an Owner in any Temporary Shelter on such Owner’s Tract, whether for a single night or for consecutive nights (for example, if an Owner stays in a recreational vehicle on his Tract for one night, but not on the night before or the night after, then such one-night stay constitutes an Overnight Event; and if an Owner stays in a recreational vehicle on his Tract for two consecutive nights, but not on the night before or the night after such two-night stay, then such two-night stay constitutes one Overnight Event).
(b) Only an Owner (but not any Owner’s guest or invitee unless such Owner is also present) may stay overnight in a Temporary Shelter on such Owner’s Tract.
(c) No Overnight Event on any Tract may exceed 7 consecutive nights.
(d) Before construction of a Primary Residence on a particular Tract has been completed, multiple Overnight Events on such Tract may not exceed a total of 45 nights in any calendar year.
(e) After construction of a Primary Residence on a particular Tract has been completed, multiple Overnight Events on such Tract may not exceed a total of 45 nights in any calendar year.
(f) Not more than 4 Overnight Events are permitted in any calendar year on any Tract.
(g) No Overnight Event is permitted unless the Temporary Shelter is connected or has access to (i) a safe electrical source, and (ii) a potable water source and septic tank/waste disposal system which have been permitted and approved by Real County, the State Health Department, Real-Edwards Conservation and Reclamation District, or other governmental agency or political subdivision controlling water wells and septic systems.
19. No Tract may be used for any commercial purpose, except that:
(a) Nothing herein shall be construed to prevent an Owner or Resident from rendering professional services of a purely personal nature as long as (i) such services do not attribute to the Tract any appearance of a commercial or non-residential use, and (ii) no sign of any nature indicating such services is displayed on or near the Tract.
(b) A “bed and breakfast,” seasonal rental, or other type of tourist lodging service within the rooms of the Primary Residence or Secondary Residential Structure on a Tract shall be allowed provided that (i) the Tract is not used solely for rental purposes, (ii) no sign of any nature indicating such services is displayed on or near the Tract, (iii) no more than eight (8) persons may be present on the Tract at any time that the Tract is used for lodging services, and (iv) at least two (2) adults (18 years of age or older) who are members of the same family must be present whenever a Tract is used for lodging services. All users of lodging services must acknowledge in advance in writing that he or she has been made aware of and agrees to abide by all of the covenants, conditions, easements and restrictions set forth in this Declaration. The use of any Tract for lodging services does not and will not release any Owner from compliance with any of the obligations and duties as an Owner under this Declaration.
(c) The Primary Residence or Secondary Residential Structure on a Tract may be leased for occupancy by not more than one family unit or in the alternative two (2) adult residents. All leases must be in writing, a copy of which must be furnished to Declarant or Homeowners Association, within seven (7) days after its execution, and must contain an initial term of not less than twelve (12) months when signed. The lease of a unit does not release the Owner from compliance with any of the obligations and duties as an Owner under this Declaration. Each Owner must provide his, her or its lessee with a copy of this Declaration. All the provisions of this Declaration shall be applicable and enforceable against any lessee or other occupant of a living unit to the same extent as any Owner. Any lease or rental agreement shall be deemed to be subject to this Declaration without the necessity of specific reference hereto, and shall bind each Resident to the terms and conditions hereof.
20. Buildings and related improvements on a Tract shall be at least ten (10) feet from any property line, and no building, fence or other improvement shall encroach on the Walking Easement, Utility Easement, or the River Crossing.
21. As used herein:
(a) “Primary Residence” means a single-family residence that is intended to be the full-time or part-time residence of each Owner as to a particular Tract.
(b) “Secondary Residential Structure” means a guesthouse or servant’s quarters.
(c) “Outbuilding” means a non-residential structure such as a pump house, well house, workshop, barn, or tool shed.
(d) “Living Units” means Primary Residences and Secondary Residential Structures.
22. Improvements on each Tract must meet the following requirements:
(a) Only one (1) Primary Residence, one (1) Secondary Residential Structure, and Outbuildings are permitted on any Tract.
(b) A single story Primary Residence must contain no less than one thousand two hundred (1,200) square feet of living area. A multiple story Primary Residence may be not more than two (2) stories in height and must contain no less than one thousand five hundred (1,500) square feet of living area, including not less than one thousand (1,000) square feet of living area on the ground floor and not less than five hundred (500) square feet of living area on the second story. The minimum square footage of living area of a Primary Residence shall be that area which is heated and cooled and shall be calculated exclusive of attached closed car garages, covered carports, porches, breezeways.
(c) A Primary Residence that meets at least the foregoing requirements must be completed and occupied before construction on any Secondary Residential Structure or Outbuilding (other than a pump house or well house) can be commenced; provided, however, if and while the owner of Tract 15 also owns the approximately 583-acre tract or parcel adjacent to the Property and more particularly described in Exhibit “B” attached hereto and made a part hereof for all purposes (the “583-Acres”), then the residence in existence as of the date of this Declaration on the 583-Acres is deemed to be a Primary Residence for Lot 15 that meets at least the foregoing requirements. If at any time the owner of Tract 15 is not also the owner of the 583-Acres, then a Primary Residence that meets at least the foregoing requirements must be completed and occupied on Tract 15 before any Secondary Residential Structure or Outbuilding (other than a pump house or well house) on Tract 15 can be occupied or used.
(d) A Secondary Residential Structure must contain no less than seven hundred (700) square feet. The minimum square footage of a Secondary Residential Structure shall be that area which is heated and cooled.
(e) All Living Units shall be “earth tone” in color. The exterior portion of any Living Unit not constructed of brick or stone shall be stained or painted. All metal roofing on Living Units must be galvalume or another material of better grade or durability than galvalume. All Living Units must have a minimum 5/12 roof pitch except for porches, patios, and Living Units of southwestern design.
(f) No Living Unit or portion of a Living Unit may be moved onto any Tract. Each Living Unit must be constructed and erected on-site and permanently attached on pier and beam and/or slab foundation. Mobile, modular, pre-manufactured and/or industrial built homes may not be used as Living Unit or any portion of a Living Unit, nor stored on any Tract for any reason.
(g) Outbuildings must be permanent in nature. The exterior portion of any Outbuilding not constructed of brick or stone shall be stained or painted. All metal roofing on Outbuildings must be galvalume or another material of better grade or durability than galvalume.
(h) The construction of any Living Unit must be completed not later than ten (10) months after the commencement of the construction of such Living Unit. The construction of any Outbuilding must be completed not later than three (3) months after the commencement of the construction of such Outbuilding.
(i) Above ground butane, propane, and other compressed gas storage tanks and water tanks, pressure tanks, and well equipment on each Tract must be fully screened from view of U.S. Highway 83, each other Tract, and the Walking Easement.
(j) Air conditioning and heating unit on each Tract must be fully screened from view of U.S. Highway 83, each other Tract, and the Walking Easement. No window unit or other non-central air conditioning or heating apparatus is permitted on any Tract.
23. No overnight stay is permitted in any portion of a Living Unit until the exterior of such Living Unit has been completed and connected to a septic tank or waste disposal system which has been permitted and approved by the County and/or State Health Department or other governing body controlling wells and septic systems.
24. No exterior lighting of any sort shall be installed or maintained on any Tract or the River Crossing where the light is offensive to any Owner or Resident; provided, however, that reasonable security, landscape, tennis court, deck, patio or swimming pool lighting is permitted.
25. No exterior horns, bells, whistles or other sound devices shall be placed or used on any Tract or the River Crossing; provided, however, that residential security alarm systems are permitted.
26. Each Owner shall be responsible for the maintenance of the exterior of any dwelling unit and appurtenant structure located on such Owner’s Tract at a standard in keeping with the level of maintenance exhibited by a majority of the improvements in the Property. Each Owner’s maintenance obligations shall include repairs to roofs, glass windows and doors and all structural elements, as well as plumbing, electrical equipment, foundation maintenance and repairs, landscaping and all other improvements on such Owner’s Tract and any driveways extending to U.S. Highway 83.
27. Water may not be drawn directly from the Frio River to supply any Primary Residence, Secondary Residential Structure, Outbuilding, or landscaping on any Tract.
28. There are currently two (2) water supply systems on the Property. One water system on the Property (the “South Water System”) is available to supply water to, may be used by, and is for the particular benefit of Tracts 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10. The other water supply system on the Property (the “North Water System”) is available to supply water to, may be used by, and is for the particular benefit of Tracts 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23 and 24. No water will be supplied to the River Crossing.
29. With the consent of more than seventy percent (70%) of the Votes (as defined below), the Owners may form a homeowners’ association (the “HOA”). The HOA will have the rights and duties of similar associations under applicable law, will be governed by a board of directors consisting of at least five (5) of the Owners, and may collect reasonable annual and special assessments as necessary to accomplish the rights and duties of the HOA. If a HOA is formed, then the HOA will also have responsibility for administering, operating, maintaining, and repairing the South Water System and the North Water System (as defined below) in accordance with the terms hereof.
30. Until a HOA is formed, the Owners of each Tract that is part of either the South Water System or the North Water System will be members in an unincorporated association with the responsibility to administer, operate, maintain, and repair that respective water system in accordance with the terms hereof.
31. Both the South Water System and the North Water System are made up of one or more water wells, pumps, pressure tanks, storage tanks, water lines, valves, and related components, but neither the South Water System or the North Water System includes any water line, valve or other component that extends from the main water supply line in such system to supply water only to a particular Tract. Each water well and all pumps, pressure tanks, storage tanks, water lines, valves, permits, and related components used to supply water to the South Water System or the North Water System, regardless of where located, is and shall be owned, administered, operated, maintained and repaired by the HOA or, if no HOA is formed, by the unincorporated association with the responsibility to administer, operate, maintain, and repair that water system, and each Owner will execute and deliver all documents and take all such action necessary to give effect to the foregoing. No Owner may prevent, hinder, or otherwise interfere with the administration, operation, maintenance, repair, or inspection of either the South Water System or the North Water System.
32. Each Owner will have the non-exclusive right to use the water supply system applicable to such Owner’s Tract, subject to the following conditions and restrictions:
(a) Such water may be used only for normal household use.
(b) No Owner may permit any waste of water on the Property.
(c) The HOA or, if no HOA is formed, each Owner has a non-exclusive right of ingress and egress on and along the Tracts included in the applicable water supply system for the purpose of administering, operating, maintaining, repairing, and inspecting that water supply system. If any Owner becomes aware of any need to repair or replace any broken or inoperable part of the water supply system, then such Owner will, within ten (10) days after becoming aware of the need for such repair or replacement, give written notice thereof to the Owners of all Tracts in such water supply system and to the HOA, if any. After giving such written notice, the HOA or, if no HOA is formed, the unincorporated association with the responsibility to administer, operate, maintain, and repair that water system may repair or replace any broken or inoperable part of the water supply system and receive pro-rata reimbursement from the Owners of the other Tracts in such water supply system as a maintenance cost in accordance with the terms hereof.
(d) By January 31st of each calendar year, each Tract will be allocated, and the Owners of such Tract must collectively pay, an annual fee of $150.00 to the utility provider that provides electrical service to the water system that services the respective Tract. If such annual fee is insufficient to pay the cost of electrical service for such calendar year, then the HOA or, if no HOA has been formed, the Owner(s) of Tract 6 (for the South Water System) and Tract 11 (for the North Water System) will give written notice to the Owner(s) of each Tract in the respective water supply system of the estimated pro-rata cost for electrical service for such water supply system for the remainder of such calendar year. After giving such written notice, the HOA or, if no HOA has been formed, any Owner may pay the electrical bill for such service directly to the utility provider and receive pro-rata reimbursement from the Owners of the other Tracts in such water supply system as an operating cost in accordance with the terms hereof. Beginning with the annual fee due by January 31, 2009, the annual fee allocated to each Tract will be adjusted based on the actual pro-rata cost to each Tract of providing electrical service for that Tract’s water supply system in the previous 12 months.
(e) In addition, each Tract will be allocated, and the Owners of such Tract must collectively pay, a pro-rata portion of the cost of maintaining and operating the water supply system that is for the particular benefit of such Tract, based upon the number of Tracts in that water supply system. By way of example only, because there are 10 Tracts in the South Water System, the Owners of Tract 1 must collectively pay 10% of the maintenance and operating costs for the South Water System.
(f) The maintenance and operating costs allocated to each Tract will be a joint and several obligation of each Owner of such Tract. In the event the Owner(s) of any Tract do not pay in full the maintenance and operating costs allocated to such Tract within ten (10) days after receiving written notice that such maintenance and operating costs have been incurred, then the HOA or, if no HOA has been formed, the Owners of the remaining Tracts included in that water supply system or the unincorporated association with the responsibility to administer, operate, maintain, and repair that water system may bring suit to collect such unpaid maintenance and operating costs in any court with competent jurisdiction sitting in Real County, Texas.
(g) If (i) either the South Water System or the North Water System becomes inadequate for supplying water to the Property, or (ii) no HOA has been or is formed to administer and operate the South Water System or the North Water System and such water system becomes subject to the regulatory authority of any governmental agency or political subdivision (including but not limited to the Texas Commission on Environmental Quality or its successor agency), then the provisions of this Declaration which specifically relate to such water supply system shall immediately terminate and be of no further force or effect.
(h)
Until a HOA is formed in accordance with the terms and conditions set forth
herein, the Owner(s) of any Tract may withdraw from the water supply system in
which such Owner’s Tract is then included under the following conditions:
(i) Such Owner (the “Withdrawing Tract Owner”) must give at least sixty (60) days’ prior written notice to the Owner(s) of all other Tracts included in that water supply system, such notice stating (1) that the Withdrawing Tract Owner no longer desires to be included in that water supply system, (2) the date that such withdrawal will be effective, (3) that the Withdrawing Tract Owner has the means to supply potable water to his Tract, (4) the detailed means by which the Withdrawing Tract Owner will supply potable water to his Tract after withdrawing from the water supply system, and (5) an offer to the other Tracts with which the Withdrawing Tract Owner’s Tract is combined as set out in Section 33 below to participate with the Withdrawing Tract Owner in the means by which the Withdrawing Tract Owner will supply potable water to his Tract after withdrawing from the water supply system. By way of example only, if the Owner of Tract 4 desires to withdraw from the South Water System and drill a new water well on Tract 4, then his withdrawal notice must offer the Owners of Tracts 5 and 6 the right to also receive potable water from the new well to be drilled on Tract 4.
(ii) Within thirty (30) days after receiving the withdrawal notice from the Withdrawing Tract Owner, the written consent to such withdrawal by the Owner(s) of all other Tracts with which the Withdrawing Tract Owner’s Tract is combined as set out in Section 33 below must be filed of record in the real property records of Real County, Texas. By way of example only, if the Owner of Tract 4 desires to withdraw from the South Water System, such withdrawal will not be permitted if the written consent of the Owners of Tracts 5 and 6 has not been filed in the real property records of Real County, Texas, within thirty (30) days after the Owners of Tracts 5 and 6 received the withdrawal notice from the Owner of Tract 4.
(iii) No withdrawal from a water system will be permitted if such withdrawal would void, impair, or interfere with any permit, license, grant of right, rule, regulation or ordinance from or of any governmental agency or political subdivision with respect to the South Water System or the North Water System.
(iv) After the effective date of such withdrawal, the Tract subject to such withdrawal notice will no longer be served by such water supply system and will not incur further maintenance or operating costs with respect to such water supply system. After a HOA has been formed in accordance with the terms and conditions set forth herein, no Tract may be withdrawn from the water supply system in which such Tract is then included.
(i) Declarant does not have, has never had, or may never be deemed to have any obligation regarding the South Water System, the North Water System, or any supply of water to the Property or to any of the Tracts, whether set forth in this Agreement or otherwise. Except as specifically set forth in this Declaration, no Owner or any unincorporated association with the responsibility to administer, operate, maintain, and repair a water system has, has ever had, or may ever be deemed to have any obligation regarding the South Water System, the North Water System, or the supply of water to the Property or to any of the Tracts. Each Owner shall indemnify and hold harmless Declarant from any loss, damage, cost, expense, including attorney’s fees, that may arise in any way under this Declaration or otherwise from any supply of water to the Property or to any of the Tracts, including but not limited to loss, damages, cost, or expense, including attorney’s fees, arising out of or resulting from property damage, personal injury or death.
33. From and after the date hereof, no water well may be drilled on the River Crossing. From and after the date hereof, and regardless of which Tracts are included in either the South Water System or the North Water System at any particular time, in no event may more than one (1) water well be drilled and operational at any particular time on:
- Tracts 1, 2 and 3 combined;
- Tracts 4, 5 and 6 combined;
- Tracts 7, 8 and 9 combined;
- Tracts 10, 11 and 12 combined;
- Tracts 13, 14 and 15 combined;
- Tracts 16 and 18 combined;
- Tracts 19, 20 and 21 combined; and
- Tracts 22, 23 and 24 combined.
34. As to any matter that is subject to the vote of the Owners under this Declaration or applicable law, (a) one vote (a “Vote”) will be allocated to each Tract, (b) each Vote must be in writing and signed by a representative of the Tract as to which the Vote is allocated, (c) if more than one person or entity owns an interest in a Tract, the Vote allocated to such Tract will be cast as determined by the person, persons, entity, or entities owning a majority of the ownership interest in such Tract, and (d) no Vote may be divided, split, or otherwise cast as a fraction or percentage.
35. An Architectural Control Committee (the “Committee”) is hereby created.
(a) Until Declarant has sold more than fifty percent (50%) of the Tracts, the Committee will initially consist solely of a single person designated by Declarant. After Declarant has sold more than fifty percent (50%) of the Tracts (i) the Committee will consist of three (3) persons chosen by a majority of the Votes, and (ii) any Committee member may be removed from the Committee by at least seventy percent (70%) of the Votes. The Committee will develop and promulgate to all Owners written standards for the construction of improvements on the Property, which standards will supplement but not contradict the terms of this Declaration.
(b) Neither the Committee nor the individual members of the Committee will be liable for any act or omission in performing or purporting to perform the functions delegated hereunder. All actions of and by the Committee will be by a majority vote of the Committee’s members.
(c) No foundation, building, wall, landscaping, fence, or other improvement of any character may be erected or placed or the erection thereof begun, or changes made in the design thereof after original construction, on any Tract until construction plans and specifications showing at least the following have been submitted to and approved in writing by the Committee: the location of the structure or improvements, the size, roof pitch, exterior stone type and pattern, quality of material, and harmony of external design, materials and color scheme with existing and proposed structures, location with respect to topography, finish grade elevation, and otherwise as to compliance with this Declaration.
(d) In the event the Committee fails to indicate its approval or disapproval within thirty (30) days after the Committee’s receipt of the required documents, approval will not be required and the related covenants set out herein shall be deemed to have been fully satisfied with respect to the plans and specifications that were provided to the Committee. The approval or lack of disapproval by the Committee shall not be deemed to constitute any warranty or representation by such Committee including, with limitation, any warranty or representation relating to fitness, design or adequacy of the proposed construction or compliance with applicable statutes, codes and regulations.
(e) The approval of any construction that is not commenced within six (6) months after approval by the Committee shall be void.
(f) Not withstanding anything to the contrary herein contained, a majority of the Committee is hereby authorized and empowered, at its sole and absolute discretion, to make and permit reasonable modifications of and reasonable deviations from any of the requirements of this Declaration relating to the type, kind, quantity or quality of the building materials to be used in construction of any building or improvement on any Tract and of the size and location of any such building or improvement when, in the sole and final judgment and opinion of a majority of the Committee, such modifications and deviations in such improvements will be in harmony with existing structures and will not materially detract from the aesthetic appearance of the property and its improvements as a whole.
(g) The Committee may require the submission to it of such documents and items (including as examples, but without limitation, written request for and description of the variances requested, plans, specifications, plot plans and samples of materials) as it shall deem appropriate, in connection with its consideration of a request for variance. If a majority of the Committee shall approve such request for a variance, the Committee shall evidence such approval, and grant its permission for such a variance, only by written instrument, addressed to the Owner of the Tract(s) relative to which such variance has been requested, describing the applicable restrictive covenant(s) and the particular variance requested, expressing the decision of the Committee to permit the variance, describing (when applicable) the conditions on which the variance has been approved (including as examples, but without limitation, the time limitation of such approved variance, if any, the type of alternate materials to be permitted, or specifying the location, plans and specifications applicable to the approved outbuilding), and signed by a majority of the then members of the Committee. Any request for a variance shall be deemed to have been disapproved for the purposes hereof in the event of either (a) written notice of disapproval by the Committee; or (b) failure by the Committee to respond to the request for variance within thirty (30) days after the Committee’s receipt of written notice of such request for variance. In the event the Committee or any successor to the authority thereof shall not then be functioning and/or the term of the Committee shall have expired, no variance from the covenants of this Declaration shall be permitted.
36. The failure of any Owner or Resident to comply with any covenant, condition, easement, or restriction in this Declaration will result in irreparable damage to Declarant and other Owners; thus the breach of any provision of this Declaration may not only give rise to an action for damages at law, but also may be enjoined or may be subject to an action for specific performance in equity in any court of competent jurisdiction. In the event an action is instituted to enforce the terms hereof or prohibit violations hereof, and the party bringing such action prevails, then in addition to any other remedy herein provided or provided by law, such party shall be entitled to recover court costs and reasonable attorney’s fees from the non-prevailing party. Declarant, the Homeowners Association, if any, and each Owner have the right, but not the obligation, to police, control or enforce the terms of this Declaration. These provisions are intended to strictly comply in full with all applicable law, as now existing or hereafter amended. If and to the extent that any provision this Declaration does not comply with applicable law, such provision is hereby altered, changed and amended to secure such compliance; and this covenant and condition shall be deemed paramount and control over all other provisions.
37. Declarant may unilaterally amend this Declaration for any purpose until December 31, 2012. After December 1, 2012, (a) Declarant may unilaterally amend this Declaration, at any time and from time to time, if such amendment is necessary to bring any provision hereof into compliance with any applicable governmental statute, rule or regulation or judicial determination which is in conflict therewith, necessary to enable any reputable title insurance company to issue title insurance coverage with respect to any portion of the Property, or is required by an institutional or governmental lender, purchaser, insurer or guarantor of mortgage loans to enable it to make, purchase, insure or guarantee mortgage loans on any portion of the properties within the Property, and (b) this Declaration may be amended by vote of no less than seventy (70) percent of the Owners, with one vote allocated to each Tract. If two or more Tracts have been consolidated into one building site with property lines which differ from the recorded Plat, such consolidated building site will be entitled to only one vote regardless of the number of Tracts which make up such building site. For the purposes of this paragraph, Declarant shall be considered the Owner of all Tracts as to which Declarant holds record title; provided, however, that Declarant will not vote for or oppose the formation of a Homeowners Association. Further, waivers of the covenants, conditions, easements and restrictions set forth in this Declaration may be granted from time to time with respect to any Tract, or with respect to any Owner or Resident thereof, by any of Declarant, the Homeowners Association, or the vote of no less than seventy (70) percent of the Owners, with one vote allocated to each Tract, for the purpose of relieving hardship or permitting good architectural planning to be effected.
38 No amendment may remove, revoke or modify any right or privilege of Declarant without the written consent of Declarant or its respective assignee of such right or privilege.
39. The covenants, conditions and restrictions of this Declaration shall be effective for a term of twenty (20) years from the date this Declaration is recorded, after which period the covenants, conditions and restrictions shall be automatically extended for successive periods of ten (10) years. Neither any amendment nor any termination shall be effective until recorded in the real property records of Real County, Texas, and all governmental approvals, if any, with regard to such amendment or termination have been obtained.
These covenants, conditions, easements and restrictions are for the purpose of protecting the value and the desirability of the Property; as such, they shall run with the Property, be for the benefit of the Property, each Tract and each Owner, and be binding on all parties having any right, title or interest in the Property or any Tract, in whole or part, and each of their respective heirs, successors and assigns.
Executed effective as of the date first set forth above.
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Scott Smith Sheila Smith
STATE OF TEXAS
COUNTY OF _______________
This instrument was acknowledged before me on ___________________, 2007, by Scott Smith.
________________________________________
Notary Public, State of Texas
STATE OF TEXAS
COUNTY OF _______________
This instrument was acknowledged before me on ___________________, 2007, by Sheila Sorensen Smith.
________________________________________
Notary Public, State of Texas
Exhibit “A” Property Description for Frio Vista Ranch
Exhibit “B” Property Description for 583-Acres
Prepared in the law office of and after recording return to: Garry A. Merritt, P.C., P.O. Box 441, Leakey, TX 78873