DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
FOR
THE PRESERVE, UNIT 1
THIS IS A COMPREHENSIVE LEGAL DOCUMENT, WHICH PROVIDES FOR THE
IMPOSITION OF MANDATORY HOMEOWNER ASSESSMENTS. THIS DECLARATION
IS BINDING UPON ALL FUTURE OWNERS IN THIS SUBDIVISION.
DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS AND
RESTRICTIONS
KNOW ALL MEN by these presents that GEORGE STRICKHAUSEN IV
(sometimes hereinafter referred to as "Declarant"),
being the sole owner of that certain land described as follows:
Lots 1 through 18 in THE PRESERVE, UNIT 1, according to amended
final plat therefore recorded in Volume 5 at Page 26 of the Plat
Records of Aransas County, Texas;
and desiring to establish and carry out a uniform plan for the
use, occupancy, ownership and improvement of all residential lots
in said subdivision for the benefit of the present and future
owners of said lots, Declarant does hereby declare, establish and
adopt certain reservations, restrictions, conditions, protective
covenants and easements (hereinafter collectively referred to as
"Restrictions"), which shall be applicable to the use,
occupancy, ownership and improvement of all residential lots in
said subdivision (the term "lot" as used herein shall
mean all platted residential lots as shown on the aforedescribed
plat and shall also include any residential building site created
by consolidation of the originally platted lots, as permitted
herein), and every contract, conveyance or other transfer of title
hereafter executed with respect to any residential lot or lots in
the aforenamed subdivision shall conclusively be held to have been
executed, delivered and accepted subject to the following
Restrictions and this Declaration, regardless of whether or not
said Restrictions and Declaration are set out in full or are
incorporated by reference in said contract, conveyance or other
transfer of title.
The term "Declarant" as used herein shall mean GEORGE
STRICKHAUSEN IV., and his successors and assigns provided such
successor or assign acquires in a single transaction not less than
five (5) residential lots for purposes of development or
residential construction and receives an assignment of
Declarant’s rights as a part of the acquisition.
The terms “residential lot” and “lot” as used herein
shall include all lots described above except any lot that may be
owned or acquired by the Association shall be deemed Common Area
for so long as such lot is owned by the Association. Any Common
Area shall not be subject to the restrictions except as provided
in Article 23 herein.
The term “additional property” shall mean and refer to real
property which is annexed and made subject to this Declaration
pursuant to ARTICLE 29 of this Declaration or any Amended or
Supplemental Declaration.
This Declaration shall affect only those lots identified above
and as may be annexed and shall not affect any other property.
The Preserve Owners Association, Inc. herein sometimes referred to
as the “Association” has been incorporated under the laws of
the State of Texas, as a non-profit corporation, for the purpose
of implementing this Declaration, assessing and collecting the
annual maintenance charge specified herein, managing said fund and
arranging for the performance of services contemplated and making
payment therefore out of said fund, the establishment and
enforcement of rules and regulations affecting the operation, use
and enjoyment of any common area and facilities, for the
acquisition and use of real and personal property, and for
effective and efficient operation of the business of the
Association for benefit of its membership. In this regard, said
Association shall have all the powers granted by the Texas
Non-Profit Corporation Act.
The initial mailing address of the Association is Preserve Owners
Association, Inc., P.O.Box 1261, Rockport, Texas 78381-1261. The
mailing address of the Association may be changed by recording
notice of change of address in the Office of the County Clerk for
Aransas County, Texas.
ARTICLE 1. LAND USE AND BUILDING TYPE
All lots subject to these Restrictions shall be used only for
single-family residential purposes and no building or structure
shall be erected, placed, added to or altered on any lot except a
single family residential dwelling, not exceeding two and one-half
stories of living area in height, attached garage not to exceed
three car capacity, and appurtenant structures as allowed below.
Each owner of any lot subject to these restrictions shall be
deemed to have covenanted and agreed, by acceptance of a contract,
conveyance or other transfer of title covering such lot, that such
owner will not apply for a permit to erect, place, alter, or add
to any structure on any lot other than a single-family residence
or other allowed structure as specified and permitted herein. Any
garage apartment or servants' quarters which may be situated on
any lot shall not be used for rental purposes, and may be used
only by servants who are employed in the dwelling situated, or by
members or temporary guests of the family occupying the dwelling,
on said lot. "Approved", as used in this Article 1 means
the approval specified in the following Article 2 hereof and
"single-family residential purposes" as used in these
restrictions, means residential occupancy by not more than two
unrelated adult persons and their children living together as a
single housekeeping unit, together with any bona fide household
servants. No residence can be occupied until a septic system has
been approved by the appropriate governing authorities for
construction, installation and operation. Every residence
constructed shall have an enclosed garage. No garage constructed
as part of the original construction of the residence by the
original builder may be converted to living quarters, unless and
until a replacement garage of equivalent size is constructed. If
two lots are joined together as a single residential unit, the
interior lot lines (and common setback line) between the joined
lots shall be disregarded for purposes of placement of the
residence and other structures. No lot may be subdivided into an
additional lot or lots. During the period of original construction
of new homes, construction and sales trailers may be temporarily
placed and utilized upon residential lots, with approval of
Declarant. No detached garage or accessory building shall exceed
the height of the dwelling to which it is appurtenant, unless
approved by the Architectural Control Committee upon an
affirmative finding that such construction will have no
substantive negative effect upon neighboring properties. Every
garage and accessory building (except greenhouses) shall continue
the style and architecture of the primary dwelling. The square
footage of each detached garage and accessory buildings shall not
exceed sixty percent of the ground floor of the primary dwelling,
and no more than three outbuildings (including detached garages)
unless approved by the Architectural Control Committee upon an
affirmative finding that such construction will have no
substantive negative effect upon neighboring property. All homes
must face the serving street unless approved otherwise by the
Architectural Control Committee upon a finding that facing the
street would create an undue hardship and will not create a
disruption in the harmony of the community. No residence shall be
constructed without simultaneous construction of a garage for not
less than two automobiles.
ARTICLE 2. ARCHITECTURAL CONTROL
No building or improvement of any character shall be erected,
placed, added to or altered on any lot affected hereby until the
building plans, specifications and a site plan showing the
location of the proposed structure or structures have been
submitted to and approved by the hereinafter named Architectural
Control Committee (“Committee”) for the Association as being
in compliance with these restrictions as to use, quality of
workmanship and materials, nature of materials, harmony of
external design and external colors with existing and proposed
structures, and location of improvements with respect to
topography, finished grade elevation, lot boundary lines and
building lines, and within the scheme and design of Declarant. The
location of water wells and septic systems are also subject to the
approval of the “Committee”.
The plans and other documents to be submitted to the
hereinafter named Architectural Control Committee for the
Association, as above set forth, shall be submitted in duplicate,
for approval prior to commencing the erection, placement, addition
to or alteration of any such improvements on any lot. Upon
approval, the Committee shall mark each set approved, return one
set to the applicant and retain one set for the records of the
Committee. In the event the Committee fails to approve or
disapprove such plans and documents in writing within thirty (30)
days after actual receipt of the request for approval, such plans
and documents shall be deemed approved in so far as the requested
improvement is not otherwise prohibited by the covenants; failure
to reject the requested plan SHALL NOT BE DEEMED A WAIVER OF ANY
COVENANT CONTAINED HEREIN AND THE REQUESTING PARTY MUST COMPLY
WITH ALL THESE COVENANTS OTHERWISE. Construction, once approved,
must be completed within one hundred-eighty days (180) of
approval; if the construction is not completed timely, the
approval granted will be void. Deposit in the mail of any
rejections, within thirty days of the actual receipt of the
request, shall be deemed timely. If the person requesting approval
by the Committee provides a facsimile number, approval or denial
of the request may be delivered by facsimile.
During the period that Declarant owns any lot, the
Architectural Control Committee shall be appointed by Declarant;
the initial Committee shall be composed of George Strickhausen IV;
Declarant may appoint additional members to the Architectural
Control Committee. In the event of resignation or removal of any
member of the Architectural Control Committee, while Declarant
owns any lot, Declarant shall appoint a successor to fill the
vacancy on the committee. Declarant may, at Declarant's sole
choice, assign Declarant’s right to appoint members to the
Architectural Control Committee created in this Article 2 to the
Board of Directors of the Association or to a successor Declarant.
If Declarant assigns its right to appoint members of the
Architectural Control Committee, the Architectural Control
Committee shall consist of three members. The person or entity
empowered to appoint members to the Architectural Control
Committee are also empowered to remove and replace members of the
Architectural Control Committee. When Declarant and any successor
or substitute Declarant no longer owns any lot within the
subdivision or annexed subdivisions, the power to appoint members
of the Committee shall vest in the Board of Directors of the
Association.
The Architectural Control Committee shall have the express
authority to perform fact-finding functions hereunder and shall
have the power to construe and interpret any covenant herein that
may be vague, indefinite, uncertain or capable of more than one
construction or interpretation. The Architectural Control
Committee shall have the authority to determine and publish
reasonable standards for materials, colors and design for
improvements, from time to time, as the Architectural Control
Committee sees fit. The Committee shall have the authority to
designate one or more members of the Committee to respond on
behalf of the entire Committee.
Members of said Committee and their representatives shall not
be liable to any person subject to or possessing or claiming the
benefits of the restrictive covenants for any damage or injury to
property or for damage or loss arising out of their acts or
failure to act hereunder, it being understood and agreed that any
remedy be restricted to injunctive relief and no other. The
members of the Architectural Control Committee shall not be
entitled to any compensation for services rendered pursuant to
this covenant. The Architectural Control Committee and its members
do not represent or warrant that any approved construction meets
any building standard, will increase the value of any property, or
will cause no harm to neighboring properties. All improvements are
constructed at the sole risk of the lot owner.
If the Architectural Control Committee shall determine that the
complexity of a request for architectural approval so warrants,
the Architectural Control Committee may retain an architect and/or
engineer for assistance and advice; in this event, the reasonable
costs of such architect and/or engineer shall be paid by the party
requesting architectural approval.
The initial mailing address of the Committee is P.O. Box 1261,
Rockport, Texas 78381-1261. The mailing address may be changed by
recording notice of change of address in the Office of the County
Clerk in Aransas County, Texas.
Architectural Control Committee action is in addition to and
not in lieu of any construction permits that may be required by
statute, ordinance or regulation.
ARTICLE 3. DWELLING SIZE AND MATERIALS
Any dwelling situated on any lot must contain a total living
area of not less than 2,000 square feet with at least 1,200 square
feet of living area on the ground floor, exclusive of open or
screened porches, terraces, driveways, garage, garage apartment or
servant's quarters or other approved accessory building or
structure. All foundations on residences and all out buildings
must be concrete and must be fully enclosed at the perimeter
exclusive of verandahs, decks, patios, porches, and or gazebos.
The roof of all structures shall not be flat, built up gravel or
otherwise, unless approved by the committee. Roof material shall
be tile, approved metal, or a dimensional composition shingle of
240 pound weight or more. All roof pitch and design must be
approved by the committee. The front and side elevations of each
residence shall have masonry up to the height of the first floor
ceiling, except above doors and windows and where architectural
features may require a different material as may be approved by
the Committee. Masonry shall be defined as brick, stone, stucco,
rock and other materials deemed masonry by the residential
construction industry in Aransas County, Texas. The use of sheet
siding is prohibited. All exterior building materials are subject
to approval by the Architectural Control Committee, in its sole
discretion. No “box on box” two story designs will be allowed.
Driveway approaches (from street line to property line) shall
be constructed as described in Article 5 below. Beyond the
driveway approach, driveways may be constructed of concrete,
stamped concrete, brick pavers, asphalt on crushed limestone base
material, or unsealed compacted crushed limestone base material
and may not be less than 12 feet in width.
From time to time, the Architectural Control Committee may
publish a memorandum of approved materials, colors and designs
that are deemed acceptable to the Committee for use within the
Subdivision subject to this Declaration.
ARTICLE 4. LOCATION OF BUILDINGS AND IMPROVEMENTS ON LOTS
No part of any building shall be located nearer to any street
boundary line of any lot than the building setback line or
limiting lines shown on the recorded plat of the aforenamed
subdivision or as specified below, whichever is greater. Lots 2,
3, 4, 5, 11 and 12 shall be setback from the street a distance of
not less than 50 feet. Lots 6, 7, 8, 9 and 10 shall be setback
from the street a distance of not less than 100 feet. Rear
setbacks will be 30 feet on all lots except Lots 2, 3, 6, 7, 8,
which contain portions of the wildlife-wetland easement. All
building placement on the North side of Lots 2, 3 and 7 must be
inside the natural tree line. All building placement on the North
side of Lot 6 must not extend farther than a 350 ft. radius from
lot line at street cul-de-sac. The rear setback on Lot 8, the rear
being the North side of Lot 8, shall be 150 feet. Lots 13, 14, 16,
17 and 18 shall be setback from the street right-of-way a distance
of not less than 75 feet and shall be setback from the rear
property line not less than 30 feet. The street setback on Lot 15
shall be 250 feet and the rear setback is thirty feet. No part of
any building shall be located within thirty (30) feet of any
interior lot boundary line. The Committee shall determine which
line (or lines) is a rear line in the event of an irregular lot.
If two lots are joined together as a single residential unit, the
interior lot line between the joined lots shall be disregarded for
placement of the residence and other structures. For the purposes
of these restrictions, the front line of each lot shall be the
shortest boundary line thereof abutting the street as shown by the
recorded subdivision plat, except for Lots 2, 13, 14, 15, 16, 17,
and 18.and for which the front line shall be along Texas State F.M.
Road 1781. Lots fronting on Texas State F.M. Road 1781 shall
maintain controlled access to the subdivision by use of a gate or
other means as approved by the Architectural Control Committee.
The residential dwelling on each lot in the aforenamed subdivision
shall face the front of the lot. No building or improvement shall
impair the use of any easement provided in the Plat of the
subdivision or dedicated by instrument. All attached garages with
doors facing the street must be at least 30 feet behind the front
line of the residence or as approved by the Committee; detached
garages which are more than 20 feet behind the rear line of the
residence may face the street or as approved by the Committee.
No structure or improvement of any kind shall be placed between
the front set back line and the front property line except
driveway security gates, outdoor lighting, landscape materials and
landscape related improvements as may be approved by the
Architectural Control Committee in its sole discretion, except as
provided above.
The Architectural Control Committee shall have the power to
waive the set back line requirements, as a predicate to
Architectural Control Committee approval upon a finding by the
Committee that such waiver will not create an unreasonable burden
upon the subdivision and that there is sufficient need for such
waiver. Such waiver shall not alleviate the requirements of any
building code or governmental regulation, shall be applied to each
specific situation and shall not be deemed a waiver of any future
enforcement. No waiver shall be effective unless the appropriate
governmental authority, if any, approves an applicable variance.
ARTICLE 5. SPECIAL CONSTRUCTION PERIOD REQUIREMENTS
In order to protect the roadway(s), no construction may be
commenced on any lot until a concrete, stamped concrete or brick
paved driveway approach, not less than 32 feet wide at the
fronting street pavement and not less than 16 feet wide at the
property line, has been constructed and utilities located. Each
respective Lot Owner shall be fully liable and responsible for any
and all damage to the road pavement, roadway shoulder, roadside
ditches and drainage ways, caused by Lot Owner or any contractor,
subcontractor, supplier, inspector, and every other person
providing services, labor or materials for the construction of the
respective residence and outbuildings. The term “damage” shall
include but not be limited to broken or scraped pavement, crushed
or broken culverts, entry gates, gouges in ditches and
rights-of-way, broken utility lines, and scraped trees. Lot Owner
shall promptly report all such damage to Declarant and the
Association. Lot Owner shall repair all damaged property, within
10 days, at Lot Owner’s sole cost and expense, to the condition
prior to the damage or as otherwise determined by the Board of
Directors of the Association. If suitable repairs are not
completed within the 10 day period, the Association may make the
repairs and the cost of such repairs shall be a debt of the Lot
Owner and shall be secured by a lien upon the respective Lot. If
collection activities are necessary to collect the monies due
hereunder, the Lot Owner shall pay all costs of collection,
including but not limited to court costs, attorney’s fees and
related expenses; suit is not required to recover reasonable
attorney’s fees for pre-suit collection. If the Lot Owner fails
to report such damages to the Association and Declarant, within 3
days of the occurrence, an additional penalty of $50.00 shall be
paid to the Association. No repairs shall be made without the
approval of the Association, acting through its Board of
Directors, in order to protect the value of Association property;
approval shall not be unreasonably withheld.
ARTICLE 6. DRAINAGE
The owner of each lot shall maintain the original drainage
design and construction of drainage on the residential lot. The
original drainage design and construction shall not be altered
without prior approval by the Architectural Control Committee;
also during the first ten (10) years of the existence of each lot,
no approval for alteration of the drainage design of any lot shall
be effective unless Declarant has given its written approval of
such change. Declarant shall have no liability of any kind for its
approval or rejection of any request for alteration of drainage.
The owner of the lot upon which drainage is altered shall have the
sole responsibility for any damages arising therefrom. No
landscape plan or design, which would have the effect of altering
the drainage of any individual lot to hold water or would increase
the flow of water to another lot, may be approved. Each property
owner is solely responsible for changes to the drainage upon each
owner’s property, including but not limited to damages to such
owner’s property and surrounding properties. All pond
construction must be approved in writing by the Board of Directors
as to size, depth, slope and placement of excavated soils. There
will be no sale of excavated soils without the approval of the
Board of Directors.
ARTICLE 7. UTILITY AND DRAINAGE EASEMENTS
All easements for utilities and drainage shall be kept clear of
improvements or structures of any kind and no trees, shrubs, berms
or other obstructions may be placed upon such easements in such a
manner as would in any way limit the intended use of the
easements. In this regard, Declarant, the hereinafter named
Association, and any utility company or drainage authority using
said easements shall be not liable for any damage done to
shrubbery, trees, flowers, or other property which is located
within the area covered by said easements.
ARTICLE 8. PROHIBITED STRUCTURES
Mobile homes and modular homes are prohibited on any lot,
whether or not wheels are attached. Except where preempted by
federal or state law or regulation, no antenna of any kind may be
placed, kept or maintained on any lot except (a) a
"wire" or "tube" antenna for receiving usual
and ordinary AM-FM radio and television signals, which antenna
must be contained within the attic space of the residence, and (b)
"dish" or "satellite" receiver, of not greater
than one (1) meter in diameter, to be installed only on the side
or back of the house, not to exceed the height of the tallest part
of the house structure; each owner shall use its best efforts to
conceal all antennae from persons on the fronting street. No
broadcast antenna or antenna used for output devices may be placed
outside any residence. All utilities shall be underground. No
above ground swimming pools shall be constructed; a small,
temporary, children’s wading pool, not more than twelve inches
deep nor more than six feet in width, may be placed in the rear of
the residence for use by children. No clothesline shall be
constructed unless concealed from general view by fences,
buildings and/or landscape as may be required by the Architectural
Control Committee. No flag poles, skateboard ramps, or other
athletic apparatus may be erected, maintained or placed, at any
time, in front of the respective front building setback lines.
Without limiting the foregoing limitations, no portable building,
tent, shed, barn, basketball goal or other portable structure of
any nature shall be placed on any lot without approval by the
Architectural Control Committee; provided, however, with approval
by Declarant, that a temporary office, flag poles, signs and
work-shed may be placed upon a lot by a home building company,
without Architectural Control Committee approval for, use in
connection with the erection and/or original sale of dwellings in
the aforenamed subdivision, but such temporary office, flag poles,
signs and work-shed shall be removed at completion of the erection
or sale of the dwellings, whichever is applicable. Any such
permitted temporary structure shall never be used for residential
purposes.
ARTICLE 9. PROHIBITED ACTIVITIES
Except as provided elsewhere in these covenants, no business or
service activity of any kind shall be conducted on or from any lot
or from any improvements situated thereon, whether activity be for
profit or otherwise. The lots and buildings may be used for
noncommercial residential uses only. No lease or rental of any
residence may be for a period of less than one hundred eighty
(180) days. Prior to occupancy of any Lot by a tenant/lessee, the
Owner shall provide a copy of the lease agreement to the Board of
Directors; all lease agreements shall contain a provision
notifying the tenant/lessee of this Declaration and requiring that
all persons occupying the Lot comply with all provisions of this
Declaration. No property may be used as corporate housing,
corporate retreat or other uses which create a transient
occupancy.
No noxious or offensive activity of any kind, which may
constitute or become an annoyance or nuisance to the subdivision
neighborhood, shall be permitted on any lot, nor shall any illegal
activity be permitted on any lot. No activity intended as a
harassment of any owner shall be allowed. Without limiting the
foregoing, violation of any order of the State of Texas, any state
agency, or political subdivision, or any municipal ordinance,
state law or federal law shall be deemed a nuisance and subject to
enforcement as provided herein. Outdoor lighting must be
down-shielded to minimize its effect on adjacent properties; the
Architectural Control Committee may prohibit any lighting deemed
inconsistent with the nature of the community. No lot may be used
for storage of material and equipment except for normal
residential requirements or incidental to the construction of
improvements thereon as approved by the Architectural Control
Committee.
In the interest of public safety, streets and roadways shall
not be used as playgrounds or recreational areas. No firearms or
fireworks may be discharged at any time; the term “firearms”
shall include rifles, shotguns, pistols, revolvers, pellet guns,
bb guns, blow guns, paint guns, cannons, and all other items
defined as “firearms” in the Texas Penal Code. Bows and arrows
may not be used.
ARTICLE 10. WATER WELLS AND SEWAGE TREATMENT
All water wells must be pressure cemented or grouted to 100
feet. All on-site sewage facility systems and water wells must
meet or exceed the minimum requirements of all regulatory
agencies. No water well or on-site sewage facility may be located
nearer to any property line than 25 feet. Upon request by the
Association, the Lot Owner shall produce satisfactory evidence of
compliance with all applicable public health laws, rules and
regulations for water wells and on-site sewage facilities. All
shall be maintained in good and safe working condition.
ARTICLE 11. MINING AND MINERAL OPERATIONS
No oil or gas wells or drilling or development operations or
refining, quarrying or mining operations of any kind shall be
permitted on any lot.
ARTICLE 12. GARBAGE AND OTHER WASTE
No lot shall be used or maintained as a dumping ground for
rubbish, trash, garbage or other waste and such substances shall
not be kept or stored upon any lot, except that the garbage and
other waste accumulated from normal household operations may be
kept temporarily for purposes of ordinary waste collection. All
such waste substances being kept on a lot pending collection
thereof shall be kept in sanitary containers with securely closed
tops or lids or in plastic bags with the tops thereof securely
closed. Any such containers shall be hidden from general view,
except when awaiting collection on a regularly scheduled
collection day. The temporary location of such containers pending
collection, and the period of time such containers or bags may be
situated at such temporary location shall all be subject to the
approval of the hereinafter named Architectural Control Committee.
All containers, bags, or other equipment for the storage or
disposal of such waste substances shall be kept in a clean and
sanitary condition. All waste containers shall be placed for
collection on the same day as pickup is scheduled, and in
compliance with all applicable ordinances, rules and regulations.
ARTICLE 13. ANIMALS
No animals, livestock or poultry of any kind shall be raised,
bred or kept on any lot, except that no more than three dogs
and/or three cats may be kept, provided they are not kept, bred or
maintained for commercial purposes. All pets must be attended and
on a leash except when within the confines of a residence or
fenced area; no pet shall be allowed to roam the subdivision. Pets
shall have such care and restraint so as not to be obnoxious or
offensive on account of noise, odor, or unsanitary conditions.
Incessant barking or howling of pets shall be deemed a nuisance
and is prohibited. All pets must be vaccinated against those
diseases for which vaccinations may be required by municipalities,
such as rabies and distemper.
The owner and custodian of each pet shall immediately remove
the excrement of his/her pet from yards, streets, sidewalks and
rights-of-way. No animals may be kept on the front yard
unattended, whether kept on a staked leash or not, and must comply
with local ordinances.
ARTICLE 14. EASEMENTS
Easements for installation and maintenance of utilities and
drainage facilities are reserved as shown on the recorded plat and
additional drainage easements are reserved over the rear five feet
(5') of each lot and along and parallel to the side property
line(s) five feet (5') in width. Within these easements, no
structure, planting or other material shall be placed or permitted
to remain so as not to damage or interfere with the installation,
performance, and maintenance of utilities, or which may change the
direction of flow of drainage channels in the easements, or which
may obstruct or retard the flow of drainage channels in the
easements. The easement area of each lot and all improvements in
it shall be maintained continuously by the owner of the lot,
except for those improvements for which a public authority or
utility company is responsible.
ARTICLE 15. FENCES, WALLS AND HEDGES
Declarant has caused or may, but is not obligated to, cause the
construction of a masonry, wood or metal fence, along certain
portions of lot boundary lines which are common with the
boundaries of the subdivision, boundaries of the easements, and
rights-of-way as may be shown on the aforesaid plat. Without
limiting the foregoing, Declarant or the Association may construct
a fence on one or both sides of the ten (10) foot wide Walking
Trail And Fence Easement shown on the plat of The Preserve Unit 1.
The obligation to maintain, repair and replace the
aforedescribed fence, along the above specified lot boundaries or
portions thereof, shall be the obligation of the Association.
In order to preserve the open nature of the subdivision and to
facilitate the movement of wildlife, perimeter (lot line fences),
are prohibited.
Dog runs, swimming pools enclosures and other special purpose
fences may be approved by the Architectural Control Committee in
it sole and absolute discretion.
Fences and fence type walls shall be generally 3 to 7 feet in
height above the ground level, unless otherwise approved by the
“Committee”. The surface or any such fence or wall shall be
faced with, brick or stone or other material approved by the
“Committee”. The design of wood, masonry and iron portions of
fences and gates shall be subject to the approval of the
“Committee”. All color of fences and walls shall be determined
by the “Committee” considering harmony with the existing
residence and the subdivision as a whole. Driveway gates may be
installed at each residence pending design approval by the
“Committee
ARTICLE 16. TRAFFIC SIGHT BARRIERS
No shrub, tree, object or thing which obstructs sight lines at
elevations between two (2) and six (6) feet above the roadway,
whether such roadway is public or private, shall be placed or
permitted to remain on any corner lot within the triangular area
formed by the street property lines of such lot and a line
connecting such property lines at point located on each said
street property lines at a distance of twenty-five (25) feet from
the point where such lines intersect or would intersect if
extended; nor shall any such obstruction be placed or permitted to
remain on any lot within the triangular area formed by the street
property line of such lot, the edge line of any driveway or alley
pavement, and a line connecting said lines at points located on
each of said lines at a distance of ten (10) feet from the point
at which said lines intersect or would intersect if extended.
ARTICLE 17. WILDLIFE HABITAT AREAS, CUTTING OF TREES AND
VEGETATION AND REMOVAL OF TRASH
Each lot, except Lot 2, 3, 6, 7 and 8 shall keep at least
twenty-five percent (25%) of the surface in its natural state for
wildlife. Although not mandatory, every lot owner is encouraged to
leave (preserve) as much of the lot in native habitat as possible.
Any area left in its natural state shall be exempt from regular
maintenance. Only vegetation which is invasive, i.e. vines, may be
removed from wildlife habitat areas without prior approval of the
Architectural Control Committee. Lot owners are encouraged to
included mostly native plants in any formal landscaping. For
surface area of each lot that has been landscaped or otherwise
converted from its natural state, the owner and occupants of each
lot shall at all times keep all grass and weeds cut and trimmed in
a reasonably neat manner and shall maintain adequate ground cover
to protect against soil erosion, and in no event permit an
accumulation of garbage, trash, rubbish or otherwise. There shall
be no burning permitted at anytime. Within twenty five feet of
property line adjoining any residential lot all understory
(underbrush) must be left in place or any approved landscaping
that would provide a natural sight barrier or as approved by the
committee. Within thirty feet of any property line, no tree with
trunk size of six inches or more in diameter, measured two feet
above ground level, may be removed without the express written
permission of the Architectural Control Committee. No tree with
trunk diameter of eight inches or greater, measured two feet above
ground level, may be removed from any lot without the express
written permission of the Architectural Control Committee, unless
it falls within the foundation perimeter of the residence and
outbuildings, or the tree constitutes a hazard to people or
property.
ARTICLE 18. INTRODUCTION OF NON-NATIVE PLANTS
Care should be given when planting exotic trees, shrubs plants,
and aquatic plants into the native landscape. No plant, listed as
a prohibited or illegal plant, by the state of Texas or other
governmental entity having jurisdiction, may be planted within the
subdivision. Without limiting the foregoing, the following plants
are specifically prohibited:
Chinese Tallow (Sapium sebiferum), Brazilian Peppertree (Schinus
terebinthifolius), Castor Bean (Ricinas comminus), Giant Reed Wild
Cane (Arunddonax), Chinaberry (Melia Azedarach), Melaleuca
Paperbark Tree (Melalueca quinqueneria), Macartey Rose (Rosa
bracteata), Salt Cedar (Tamari Spp), Rooted Water Hyacinth (Eichhornia
azurea), Water Hyacinth (Eichhornia crassipes), Water Lettuce (Pistia
stratiotes), Water Spinach (Ipomocea aquatica) and Japanese
Honeysuckle (Lonicera japonica).
ARTICLE 19. SIGNS OR BILLBOARDS
The owner of a lot shall be entitled to display one sign
thereon from time to time for purposes of selling or renting the
property; provided, that each face of such sign shall be
rectangular in shape and shall not exceed five (5) square feet in
surface area, and that the content of such sign be limited to the
words “Sold”, “For Sale” or “For Rent”, the name and
telephone number of the seller or real estate agent, and the words
“Shown by Appointment Only”. No “For Sale” or “For
Rent” sign shall be displayed unless a telephone number, where
daytime inquiries can be answered, is listed in numbers readable
from the street. No “For Sale” or “For Rent” sign shall be
displayed for any purpose other than a bona fide offer to sell or
to rent the property upon which the sign is located. No “Sold”
signs shall remain on a lot more than two weeks after completion
of the sale. During the period of lot sales and construction of
new residences, home builders maintaining a sales or construction
office within the subdivision, or areas duly annexed, Declarant
and homebuilders with consent of Declarant shall have the right to
place directional signs and other “sold” and “for sale”
signs (not exceeding eight square feet in size) that do not
contain the telephone number of the builder and other marketing
signs, provided such signs are approved in writing by the
Architectural Control Committee. For purposes of security and
safety, the Board of Directors shall have the authority to approve
the installation of one sign on each lot noting the existence of a
residential security system; no such sign shall be placed greater
than two feet (2') from the residence, and no sign or sticker
shall be installed without the size, shape, color and material
being first approved by the Architectural Control Committee. Also,
the Association may place signs on lots noting special
accomplishments, such as awards for “Yard of the Month”,
Christmas decorating, and landscape. No other sign, advertisement,
billboard or advertising structure of any kind may be erected or
maintained within subdivision boundaries without first having
obtained the consent in writing of the Board of Directors of the
hereinafter-named Association. Said Board of Directors of the
Association shall have the right to remove any unpermitted sign,
advertisement, billboard or structure which is erected or placed
on any lot or adjacent easement or right-of-way without such
consent, and in so doing, shall not be subject to any liability
for trespass or other tort in connection therewith.
No sign shall be displayed on any motor vehicle, trailer, bus,
boat, camper or related means of transportation, except for
commercial vehicles upon which the following may appear: (1) the
name of the business owning or leasing the vehicle, (2) the street
address of the business owning or leasing the vehicle, (3) the
telephone number of the business owning or leasing the vehicle,
(4) any license number of the business owning or leasing the
vehicle required by a regulatory authority, and (5) any logo of
the business owning or leasing the vehicle. As used herein the
term "commercial vehicle" shall mean a motor vehicle
that (1) is owned or leased by a business, (2) is utilized solely
in the furtherance of the business purpose, (3) is utilized solely
for transporting equipment, parts and tools used for the business
purpose, (4) is covered by a policy of insurance as a commercial
vehicle, and (5) is not used for general transportation of the
primary driver. No sign of a temporary nature, i.e. magnetic or
easily removed and replaced, shall be allowed.
No sign of any kind shall be placed or allowed to remain on any
street, whether private street or public street.
The provisions of this Article 19 may be enforced at anytime by
any person or entity named, referenced or identified on any sign.
ARTICLE 20. MISCELLANEOUS VEHICLES AND EQUIPMENT
No travel trailers, motor homes, commercial vehicles, boats,
boat trailers, camping vehicles, motorcycles, all terrain
vehicles, trailers or vehicles, other than vehicles used for
general personal transportation purposes, may be parked or stored
upon the lot unless parked in the garage or screened from view,
nor shall any such object be left or parked or stored on any
adjacent lot, street right of way, easement, or common area except
for temporary parking incident to the contemporaneous use of such
object or as otherwise approved by the Board of Directors. No
commercial vehicles, no vehicles bearing company logos and/or
telephone numbers, and no motorized vehicles containing more than
two axles may be parked or otherwise stored within the subdivision
boundaries, except as same may be temporarily parked during the
time that the driver of such vehicle is providing professional
services, labor and/or materials on the Lot where such vehicle is
temporarily parked; no such vehicle shall remain overnight within
the subdivision unless such vehicle is concealed from public view
by an approved building enclosure.
Without limiting the foregoing, it shall be presumed that any
vehicle that does not have attached a current license plate and
current safety inspection sticker (if required by statute) or has
one or more flat tires, or is otherwise disabled or partially
disassembled, is a vehicle stored in violation of this Article 20.
Motorcycles, motorbikes, motor scooters, motorized bicycles,
and other motorized vehicles shall not be operated on any lot or
operated from any lot over the streets of the aforenamed
subdivision unless such vehicle is operated by a state licensed
driver and such vehicle is equipped with an adequate and properly
functioning muffler, nor shall such vehicles be kept or operated
in such a way as to constitute a nuisance or danger. All motorized
lawn and garden equipment must be equipped with adequate and
properly functioning muffler.
ARTICLE 21. MAINTENANCE OF RESIDENTIAL LOT
All dwellings, fences, walls, water wells, septic systems and
other approved structures must be kept in a good state of
operation, painting and repair, and must be maintained at the cost
of the homeowner so as not to become unsightly.
In addition to rights, powers and remedies granted by law, in
the event of default on the part of the owner or occupant of any
lot in observing the requirements set out in Articles 1 through 21
above, or any of them, and the continuation of such default after
ten (10) days written notice from the hereinafter named
Association of the existence of such default, said Association,
upon approval by the Board of Directors, may enter upon said lot
through its agents, without liability to the owner or occupant in
trespass or otherwise, and cause to be done any work or other
thing necessary to secure compliance with these Restrictions, and
may charge the owner or occupant of such lot for the cost of any
such work or thing. The owner or occupant of each lot agrees, by
the purchase or occupation of the lot, to reimburse the
Association immediately upon receipt of a statement covering the
cost of any such work or thing. In the event of failure to pay
such statement, the amount thereof and any attorney fees and court
costs shall be added to the annual maintenance charge assessed by
the Association against such lot and become a charge thereon and
be collected in the same manner as the regular annual maintenance
charge provided for in these Restrictions.
ARTICLE 22. WILDLIFE/WETLAND DEVELOPMENT EASEMENT
All of Lot 1 and portions of Lots 2, 3, 6 7, and 8, The
Preserve Unit 1 Subdivision, are planned as an area to be included
within an easement for the development of a wildlife/wetland
project. Upon the creation of the easement and any operating
agreement with an appropriate governmental agency, the easement
and agreement will be assigned to the Association. The Association
will have the obligation and authority to manage said easement in
accordance with the agreements and business judgment of the Board
of Directors of the Association. The Board of Directors of the
Association shall develop rules and regulation for its operation
and management.
The area subject to the easement varies from lot to lot. It can
generally be described as the lower elevation lands without trees
and more particular described as the lower elevation lands outside
the natural tree line containing small motts of trees and located
on the Northern most side of Unit I of The Preserve subdivision
and more particularly described, but not limited to the area
described, by the map of the USDA Natural Resources Conservation
Service Wetland Enhancement Project for George Strickhausen –
Aransas County. The map is on file with the Preserve Owners
Association, Inc. There will be no building of any kind in the
easement area unless approved by the Board of Directors. Fish
lakes will be allowed with approval of design criteria by the
Board of Directors. and absolutely no introduction of aquatic
vegetation, fish, crustaceans, reptiles, or any species of any
kind without the written consent of the Board of Directors. Lot
1’s primary use will be a point of observation for members of
the Association.
ARTICLE 23. OWNERS ASSOCIATION, MAINTENANCE CHARGE. AND SPECIAL
ASSESSMENTS
The Preserve Owners Association, Inc. shall have the power of
(1) assessing and collecting the annual maintenance charge
specified herein, (2) managing Association funds and arranging for
the performance of the services contemplated and making payment
therefore out of said funds, (3) the establishment and enforcement
of rules and regulations affecting the operation, use and
enjoyment of common area facilities, (4) acquisition and use of
personal property, (5) collection of assessments, (6) maintenance
of rights-of-way within, or adjacent to the subdivision, and (7)
the general operation of the business of the Association. In this
regard, said Association shall also have all the powers granted by
the Texas Non-Profit Corporation Act.
Each residential lot in the aforenamed subdivision is hereby
made subject to an annual maintenance charge for the purpose of
creating a subdivision maintenance and improvement fund, funds to
operate and manage the Association authorized herein, and one or
more reserve funds. As to each Lot, such maintenance charge shall
be due and payable at closing, and thereafter paid in accordance
with this Declaration. The initial annual maintenance charge
period shall be the remaining portion of the particular calendar
year in which the aforesaid notice is given by the Association
commencing with such notice date. Thereafter, the maintenance
charge shall be assessed annually against each lot as of January
1st of each succeeding calendar year to cover the full calendar
year commencing with the particular annual maintenance charge
date. A statement reflecting the amount of the annual maintenance
charge with respect to each lot shall be mailed or otherwise
delivered to each lot owner as soon as practical after each annual
maintenance charge date. The amount of each annual maintenance
charge shall be paid by the owner of each lot (or the holder of
the mortgage on such lot, if applicable) to the Association in
advance on January 1 of each year, or within fifteen (15) days
after the statement covering such annual maintenance charge has
been mailed or otherwise delivered to the lot owner (or the holder
of the mortgage on such lot, if applicable), whichever last
occurs. Upon resolution by the Board of Directors, the annual
maintenance charge may be payable in two installments, one payable
on the 1st day of January and one payable on the 1st day of July,
each year, each payment being one-half of the annual maintenance
charge for each fiscal year. Any maintenance charge assessed
hereunder and not paid when due shall bear interest from the date
due until paid at the rate of ten percent (10%) per annum.
The maximum allowable annual maintenance charge on each
residential lot from and after the date such charge is first
assessable against such lot shall be as follows:
(a) For any assessable period within, the calendar year 2003,
the maximum allowable annual maintenance charge on each lot
subject to these Restrictions shall be the sum of Seven Hundred
fifty Dollars ($750.00).______.
(b) For any assessable period within the calendar years next
succeeding the calendar year 2003, the maximum allowable annual
maintenance charge for each particular calendar year shall be
calculated and determined as follows: The average of the Consumer
Price Index (all items), Texas area, covering All Urban Consumers,
as published by the Bureau of Labor Statistics of the U.S.
Department of Labor, or the most nearly comparable successor index
published by any governmental agency, over the most recent twelve
months for which information is available at the time of making
the annual maintenance charge applicable to the particular
calendar year shall be determined (the “current period
average”), the average said index over the twelve months of the
calendar year 2003 shall be determined (the “base period
average”), the maximum allowable annual maintenance charge for
the particular calendar year of determination shall be an amount
equal to Seven Hundred Fifty Dollars ($750.00)., as increased by
the same percentage that the aforesaid “current period
average” (adjusted to the nearest one-tenth of one percent) or
the amount of Seven Hundred Fifty Dollars ($750.00) increased at
the rate of eight percent (8%) per year, compounded annually, from
the date of the initial annual maintenance charge, whichever is
greater. If the aforedescribed Index for All Urban Consumers was
not published for any period of time involved in any determination
of a possible increase in the annual maintenance charge as
aforesaid, then the Consumer Price index (all items, United States
City Average) previously published by the Bureau of Labor
Statistics shall be used for such period of time.
(c) If any lot shall be subject to the aforesaid maintenance
charge for less than a full calendar year, then the annual
maintenance charge for any such partial year shall be calculated
on a pro rata basis.
(d) The foregoing not withstanding, it is specially provided
that so long as any lot is both owned by Declarant and does not
have a dwelling thereon, which is substantially completed and
ready for occupancy, the annual maintenance charge applicable to
such lot shall be one-fourth of the annual maintenance charge then
assessed under the foregoing provisions.
In recognition of the possibility that it may be desirable that
the Association be able to levy a special assessment from time to
time by action of the Board of Directors of the Association for
the purpose of defraying all or part of the cost of any
construction, repair or replacement of capital improvements upon
any common area currently owned or which may be, annexed hereunder
and which is dedicated for the use and benefit of the members of
the Association (including fixtures and personal property related
thereto), the following described procedure is hereby established
for imposing any special assessment for such capital improvements,
to-wit:
(1) A special meeting of all members of the Association shall
be called in accordance with all regular requirements for a
special meeting of the members, provided that written notice of
any such meeting shall be given to all members specifying that the
purpose of the meeting is to vote on a proposed special assessment
for defraying the cost of proposed capital improvements (which are
to be generally described in the notice), and further provided
that such notice shall be sent to all members not less than thirty
(30) days nor more than sixty (60) days prior to the date of such
meeting.
(2) The first special meeting of the members called for the
purpose of approving the levy of a particular special assessment
shall require the presence at the meeting (either in person or by
proxy) of members entitled to cast at least sixty-seven percent
(67%) of all votes of each class of membership in the Association
in order to constitute a quorum for valid action. If the required
quorum is not present at such first called meeting, another
special meeting may be called with respect to that particular
special assessment, subject to the same notice requirement and the
required quorum as at the preceding meeting. No such subsequent
meeting shall be held more than sixty (60) days following the
preceding meeting.
(3) At least sixty-seven percent (67%) of a valid quorum of
votes of each membership represented at the meeting (either in
person or by proxy) must have voted in favor of any special
assessment for capital improvements before such special assessment
will be effective.
The services or things which may be furnished and paid for by
the Association out of the maintenance fund include the
acquisitions and operations of common area property, if any, for
recreational or other purposes and the construction, installation,
operation, maintenance, repair and replacement of any facilities
or improvements placed thereon (subject to the limitations herein
set forth with respect to expenditures for such purposes), street
lighting, trash removal, fire, police and security patrol
services, installing, maintaining, and replacing shrubbery,
plants, grass, trees, monuments (whether located within The
Preserve Subdivision or located on rights-of-way at the entrance
of The Preserve Subdivision) and other landscaping or decorative
improvements on any common area, easement granted for benefit of
the Association, or any neighboring rights-of-way, fogging for
insect control, paying legal and other expenses for the
enforcement of the provisions of these Restrictions, paying all
taxes assessed against the Association's property, and any and all
other services or things which the Board of Directors shall deem
necessary or desirable for the maintenance and improvement of the
aforenamed subdivision, it being expressly provided that the
Association shall not be limited to the particular items set forth
above, nor shall the Association be required to furnish and pay
for any of said particular items. Also, the Association shall be
under no obligation to continue to furnish and pay for any
particular service or thing after the commencement thereof. The
Association shall provide liability insurance for all directors
and shall indemnify officers and directors for all uninsured
losses relating to acts as directors except criminal acts.
The proceeds of the maintenance charge provided for herein
shall not be used to reimburse Declarant, or its successors in
interest, for any capital expenditure incurred by Declarant in the
construction of or other improvements of common area recreational
facilities, monuments or landscape, if any, situated within or
outside the boundaries of the subdivision, nor shall any expenses
or operation or maintenance of such facilities which have been
installed by Declarant be paid for with maintenance charge
proceeds prior to the conveyance of such facilities, fully
completed and unencumbered, to the Association, unless such
payment is with the approval and consent of the Federal Housing
Administration or the Department of Veterans Affairs, if
subdivision approval has been requested and granted by such
agencies.
The Association shall be authorized under its Articles of
Incorporation to also provide maintenance services similar to
those contemplated herein for the benefit of subsequently
developed residential subdivision areas in which the lots are made
subject to deed restrictions providing for the establishment of a
maintenance charge uniform with that specified herein and which
are otherwise substantially the same as these Restrictions,
provided such subdivision areas are duly annexed as provided
herein.
In this regard it is specifically provided that, if additional
residential subdivision areas are duly annexed to the aforenamed
subdivision in the manner herein provided, the officers and
directors of the Association shall be entitled to combine
maintenance charge moneys received from lots situated in the
several subdivision areas it may be serving into a single fund and
provide and pay for services on behalf of all subdivision areas
being served by the Association without the necessity of any
allocation to particular lots or subdivision areas. The owner of
each lot affected hereby shall be deemed to have agreed to this
provision by his acceptance of a conveyance or other transfer of
title to such lot.
There has been no dedication of recreational common area and
recreational common area facilities in conjunction with the
development of the aforenamed subdivision. Should common area be
acquired, each lot owner shall have a right and easement of
enjoyment in and to any common area which may be subsequently
acquired or annexed to the aforenamed subdivision and dedicated
for the use and enjoyment of the members of the Association, which
right and easement shall be appurtenant to and shall pass with the
title to each lot, subject to the following:
(a) the right of the Association to charge reasonable admission
and other fees and to establish reasonable rules and regulations
covering the use of the common area and any recreational facility
situated upon the common area;
(b) the right of the Association to suspend a member's voting
rights and rights to the use of the common area and any
recreational facilities thereon for a period of time during which
any fees or assessments against such member's lot remains unpaid,
and to suspend such rights for a period not to exceed 60 days for
any infraction of the Association's published rules and
regulations;
(c) the right of the Association to dedicate or transfer all or
any part of the common area or any common area facilities to any
public agency or authority having the same or similar purposes as
the association, subject to such conditions as may be reserved in
the dedication or transfer. No such dedication or transfer shall
be effective unless an instrument approving such dedication or
transfer has been signed by at least sixty-seven percent (67%) of
the members in each class of membership in the Association and has
been recorded; and
(d) the right of any lot owner to delegate his or her right and
easement of enjoyment in and to the common area and common area
facilities to the members of his or her family, tenants, or
contract purchasers who reside on the property, in accordance with
the By-Laws of the Association.
Without requirement of consent by membership of the
Association, Declarant may, but is not required to, annex, by
recordation of a declaration of annexation executed by Declarant,
all or any portion of that property that adjoins or is adjacent to
The Preserve Unit 1 or adjoins or is adjacent to other property so
annexed, including but not limited to real property located within
the C.O.D. Gilliland Survey, Abstract 70, Aransas County, Texas.
Other additional residential subdivision areas and common areas
may be annexed to Preserve Owners Association, Inc., with the
consent of sixty-seven percent (67%) of the votes of each class of
membership of the Association.
A lien is hereby established on the lots subject to these
restrictions to secure the payment of the maintenance charge
established hereby, and all present and subsequent owners of said
lots should convey such lots with an appropriate reference to the
recordation of these restrictions in the Official Public Records
of Real Property of Aransas County, Texas, together with a
recitation that said lien has been retained against each lot for
the benefit of the Association. The owner or owners of any lot
subject to these restrictions shall be deemed to have covenanted
and agreed to pay the aforesaid maintenance charge by acceptance
of a conveyance or other transfer of title to such lot, even
though the reference and recitation referred to above is not made.
Each Class "A" owner acknowledges that the lien for
assessments created herein was in existence prior to the
acquisitions of a lot by such Class "A" members. Upon
the transfer of ownership of any lot, the Seller and Buyer of said
lot must promptly notify the Association of the name and mailing
address of the new owner; a transfer fee, not to exceed
seventy-five dollars ($75.00), adjusted at the same rate as the
annual maintenance charge, may be charged if such fee is approved
by the Board of Directors. The address for mailing documents to
the Association is P.O. Box 1261, Rockport, Texas 78381-1261 and
may be changed by recording of notice in the Official Public
Records of Real Property in Aransas County, Texas.
The aforesaid lien shall secure payment of the maintenance
charge and all past-due interest which may accrue thereon,
together with all reasonable expenses, costs, and attorney's fees
which may be incurred in connection with the collection thereof.
Said lien shall run with the land and be a continuing charge on
the land assessed, and shall also be a personal obligation of the
owner(s) of each lot.
Every person or entity owning of record either the entire fee
title or any undivided interest in the fee title to any
residential lot situated in the aforenamed subdivision, or in any
other area duly annexed thereto and brought under the jurisdiction
of the Association as hereinafter provided, shall be a member of
such corporation. The foregoing is not intended to include persons
or entities holding an interest in a lot merely as security for
the performance of an obligation. Membership shall be appurtenant
to and may not be separated from ownership of such lot.
The Association shall have two classes of members with voting
rights as follows:
Class A Members shall be all of the owners, other than the
Declarant, of residential lots situated in the aforenamed
subdivision and in any other area duly annexed thereto, as
hereinafter provided. Voting rights of Class A members shall be
limited to one vote for each lot owned. If any lot is owned by
more than one person or entity, all such persons or entities shall
be members and the vote to which such lot is entitled shall be
exercised as the owners of such lot may determine among
themselves.
Class B Member or Members shall be Declarant and any successor,
assign, or substitute declarant, as provided herein. The Class B
membership shall be entitled to five (5) votes for each
residential lot owned until such time as the total votes
outstanding in the Class A membership equal or exceed the total
votes outstanding in the Class B membership, or on December 31,
2018, whichever date occurs the earliest. After the earliest to
occur of the foregoing dates, the voting rights of the Class B
membership shall be automatically converted to one (1) vote for
each lot owned, the same as the Class A membership. It is
specially provided, however, that at any time, other subdivision
areas are duly annexed to the aforenamed subdivision in the manner
hereafter set out, the voting rights as to lots owned by the Class
B membership shall (if previously converted to one vote per lot)
automatically revert to five (5) votes for each lot owned until
such time as the total votes outstanding in the Class A membership
throughout the aforenamed subdivision and any duly annexed area,
collectively, shall equal or exceed the total votes outstanding in
the Class B membership throughout such total area, or until
December 31, 2018, whichever date occurs the earliest, at which
time Class B voting rights shall be automatically converted to one
(1) vote for each lot owned. The initial board of Directors of the
Association has been or will be appointed by Declarant and is to
be composed of George Strickhausen IV, Lisa Strickhausen Thaxton,
and John E. Arnim. Further, Declarant may removed appointed
directors and appoint successor directors at any time.
The aforesaid appointed Board of Directors shall hold office
until such time as at least 34% of the lots in the aforenamed
subdivision are owned by persons or entities other than the
Declarant of such subdivision, at which time the appointed members
of Board of Directors shall, as soon as practical, call a special
meeting of only the Class A members of the corporation for the
purpose of holding an election to elect a director to replace one
of said appointed directors (the retiring director to be
determined by Declarant), said director so elected to serve until
the next regular annual meeting of the members of the corporation.
The two remaining appointed members of the Board of Directors
shall continue to hold office until such time as the voting rights
of the Class B membership of the corporation shall be
automatically converted to the same voting rights as the Class A
membership (as specified above and in the Articles of
Incorporation), at which time the Board of Directors shall, as
soon as practical, call a special meeting of all members of the
corporation for the purpose of holding an election to select
another Director to replace one of the two remaining appointed
members of the Board of Directors, said Director so elected to
serve until the next regular annual meeting of the members of the
corporation. The then-remaining appointed member of the Board of
Directors shall continue to hold office until such time as the
Class B members have sold to other persons or entities all
residential lots in the aforenamed subdivision and in any other
areas duly annexed thereto (as herein provided).
In case of the resignation, death or incapacity to serve of any
appointed director during the period for which such director is to
hold office, Declarant shall appoint a successor to serve the
balance of the term of office of said director.
For so long as any board position is filled by an appointed
director, the terms of office for elected members of the board
shall be from the date of their election until the date of the
next Annual Meeting; any elected director may be elected for
consecutive and repetitive terms of office. Although Annual
Meetings may not be held exactly one year apart, the terms of
office for those elected shall be deemed one-year terms regardless
of the dates of election and the following Annual Meeting. At the
first regular annual meeting of the members after the Class B
members have sold to Class A members all residential lots situated
in the aforenamed subdivision (and in any other subdivision areas
duly annexed thereto as hereinafter provided), at the next Annual
Meeting the members of the corporation shall elect at least one
director for a term of one year, at least one director for a term
of two years, and at least one director for a term of three years,
and at each regular annual meeting thereafter the membership shall
elect at least one director for a term of three years. After the
Class B membership is dissolved, the members may elect to increase
the number of directors to five (5).
In the case of the resignation, death or incapacity to serve of
any of the aforesaid directors elected to office, by the members
of the corporation, a special meeting of the members entitled to
elect such director shall be called to elect a successor to serve
the balance of the term of said directors.
Any director elected, by the members of the corporation, may be
removed from the Board, with or without cause, by a majority vote
of those members of the corporation who were entitled to vote for
the election of such director, and in the event of such removal of
a director, a successor shall be elected to serve for the
unexpired term of such removed director by a special election to
be held by those members of the corporation who were entitled to
vote for the election of the director so removed.
No director shall receive compensation for any service he/she
may render to the corporation. However, any director may be
reimbursed for his actual expenses included in the performance of
his/her duties.
The By-Laws of the aforesaid corporation shall provide that any
and all members of the Association shall have the right to inspect
the financial books and records (with the exception of any
personal files of each member for which disclosure may be
prohibited by the Fair Debt Collection Act or other rule of law)
of said corporation at its principal offices at all reasonable
times.
If the corporation, provided herein, should dissolve for any
reason, the ownership of any common area and Association property
shall immediately be conveyed to the owners of all lots within the
subdivision in equal shares based upon a per lot distribution, of
an undivided interest, UNLESS the Board of Directors has, with
appropriate board resolution, conveyed the common area, if any,
and Association property to a municipality or other governmental
entity for public use.
ARTICLE 24. RIGHTS OF MORTGAGEES
It is specially provided that the lien hereby created to secure
the payment of the maintenance charge specified in these
restrictions shall be subordinate to and shall not affect the
enforcement of any vendor's lien or deed of trust lien now of
record or which may hereafter be placed of record against any lot
covered hereby and/or any improvements located thereon. However,
such lots shall nevertheless remain subject to said maintenance
charge, and the sale or transfer of any lot pursuant to
foreclosure of any such superior lien shall extinguish the lien
securing the maintenance charge only as to any maintenance charge
attributable to such lot for the period of time prior to such sale
or transfer, and said lien shall apply on a pro rated basis, by
calendar days, thereafter.
ARTICLE 25. TERM OF RESTRICTIONS
These restrictions are to run with the land, and shall be
binding upon and inure to the benefit of the Declarant and the
Association, their respective successors and assigns, and all
future owners of the residential lots located in the aforenamed
subdivision until December 31st of the year 2043 A.D. The
aforedescribed initial term of these restrictions shall be
extended automatically after the expiration thereof for successive
periods of ten (10) years duration each, unless an instrument
revoking these restrictions, in whole or in part, is recorded in
the Official Public Records of Real Property of Aransas County,
Texas, at least six (6) months prior to said initial expiration
date or the expiration of any ten (10) year extension period. Any
such instrument of revocation must be executed by the then owners
of at least sixty-seven percent (67%) of the collective number of
restricted lots situated in the aforenamed subdivision and any
other residential subdivision area which has been duly annexed
thereto as specified herein.
ARTICLE 26. ENFORCEMENT OF RESTRICTIONS
Lot owners, the Board of Directors of the aforesaid
Association, Declarant (until all lots subject hereto have been
sold or otherwise conveyed to persons or entities other than
commercial homebuilders) and/or the Association itself shall all
have the right, power and authority, without requirement of
joinder of the other, to file suit for damages or for injunction,
mandatory or prohibitory, to compel compliance with the provisions
of these restrictions. Also, the Association, acting through its
Board of Directors, shall have the right to bring an action at law
to foreclose the lien hereby established to secure the payment of
the aforesaid maintenance charge if any lot owner fails to cure
any such default within thirty (30) days after notice thereof from
the Association. Notice shall be deemed given three days after
deposit in the United States Postal system, postage prepaid,
written notice, or when actual written notice is delivered,
whichever first occurs. The plaintiff in any of the aforedescribed
proceedings shall be entitled to recover from the defendant in
such actions all reasonably necessary costs and expenses attendant
upon bringing such action, including reasonable attorney's fees.
The foregoing provision for recovery of costs, expenses and
attorney's fees shall be deemed to have been agreed to by the
owner(s) of any lot covered hereby acceptance of a conveyance or
other transfer of title to such lot.
Invalidation on one or more of the provisions of these
Restrictions, by court order or otherwise, shall in no way affect
any other provision hereof, and all such remaining provisions not
expressly invalidated shall continue in full force and effect.
ARTICLE 27. ASSIGNMENT BY DECLARANT AND OWNERS ASSOCIATION
The Declarant may at any time assign to the Association any and
all rights reserved to Declarant hereunder, except the right to
annex certain properties as provided in Article 29. Any such
assignment shall be evidenced by an instrument in writing recorded
in the Official Public Records of Real Property of Aransas County,
Texas. If not previously assigned, all such rights reserved to
Declarant hereunder shall automatically vest in the Association
when all lots covered by these Restrictions have been sold or
otherwise conveyed from Declarant to other persons or entities
except the right to annex certain properties as provided in
Article 29.
The Association may at any time assign or delegate to a
committee or designated representative any and all approval rights
reserved to the Association hereunder. Any such assignment or
delegation shall be evidenced by a resolution of the Board of
Directors of the Association.
ARTICLE 28. AMENDMENT OF RESTRICTIONS
These restrictions may be amended at any time prior to the
termination hereof by recorded instrument in the Official Public
Records of Real Property of Aransas County, Texas, an instrument
signed by the then owners and lien holder of at least sixty- seven
(67%) of the collective number of restricted lots situated in the
aforenamed subdivision and in any other residential subdivision
area which has been duly annexed thereto as specified herein and
joinder of Declarant if Declarant owns any lot subject to this
Declaration.
Declarant reserves the right in its sole discretion to amend
these restrictions without the consent of Owners so long as Class
B membership exists, where such amendment is for a correction or
clarification of the Declaration to achieve its intended purposes
or to correct scrivener’s errors.
ARTICLE 29. ANNEXATION AND SPECIAL CONSENTS
1. ADDITION TO PROPERTY. Additional lands may become subject to
this Declaration in the following manners:
(a) Additions by Declarant. The Declarant, its successors and
assigns, shall have the right to bring within the scheme of this
Declaration, without the consent of Members, additional properties
in future stages of the development, within fifteen (15) years
from the date of this instrument; provided that such additions are
adjacent or adjoining The Preserve Unit 1 or other property
previously annexed, including but not limited to real property
located within the C.O.D. Gilliland Survey, Abstract 70, Aransas
County, Texas. Declarant, its successors and assigns, shall not be
bound to make any additions to the Property. Any additions
authorized under this and the succeeding subsections shall be made
by filing of record a Declaration of Covenants, Conditions and
Restrictions or similar instrument with respect to the additional
property which shall extend the general scheme of the covenants
and restrictions of this Declaration to such property, and the
execution thereof by the Declarant shall constitute all requisite
evidence of the required approval thereof. Such document may
contain such complimentary additions and/or modifications of the
covenants and restrictions contained in this Declaration as may be
applicable to the additional lands and are consistent with the
overall development. The document may provide for different
residential land uses. In no event, however, shall any such
instrument be construed so as to revoke, modify or add to the
covenants established by this Declaration, as they are applicable
to The Preserve Unit 1. Declarant’s right to annex property
shall not cease upon Declarant’s conveyance of all lots then
subject to this Declaration or the Association.
(b) Other Additions. The owner of any property, who desires to
add the scheme of this Declaration and to subject it to the
jurisdiction of the Association, may make written submission there
for to the Association together with the following:
(1) The proposed property shall be described by size, location,
proposed land use, and general nature of proposed private
improvements;
(2) The proponent shall describe the nature and extent of
common facilities to be located on the proposed property and fully
describe any mortgage debt related to the common facilities or
other debt which he seeks the Association to assume;
(3) The proponent shall state that the proposed additions, if
made, will be subject to the general scheme of this Declaration
and all Association assessments.
Upon such submission and subject to the Association's later
review and approval of a proposed form of Declaration of
Covenants, Conditions and Restrictions for the proposed property,
the Association shall vote by class on the proposal. Approval by
sixty-seven percent (67%) of the total votes of each class of
membership shall be required for approval. If the proposed
property shall be approved for addition to the jurisdiction of the
Association, such addition shall be complete upon the proponent's
filing of record a Declaration of Covenants, Conditions and
Restrictions or similar instrument in form approved by the Board
of Directors of the Association and executed by said Board of
Directors or one or more authorized officers of the Association.
2. FHA/VA APPROVAL. If approval of The Preserve Unit 1 and the
Preserve Owners Association has been made by FHA/VA, and only in
that event, then for so long as the Declarant, its successors and
assigns, have a controlling vote of the Association, the following
actions will require the prior approval of the Federal Housing
Administration and/or the Veterans Administration: (a) annexation
of property other than as specifically provided in this
Declaration, (b) mortgage or dedication of Common Area, and (c)
amendment of this Declaration (other than pursuant to this
Declaration), the Articles of Incorporation or Bylaws of the
Association, or dissolution of the Association.
ARTICLE 30. CONFLICTS WITH LAWS
When this Declaration and statures, ordinances and governmental
rules and regulations cover the same subject matter, there shall
be compliance with each requirement. When this Declaration is in
conflict or becomes in conflict with statutes, ordinances, and
governmental rules and regulations, the statutes, ordinances, and
governmental rules and regulations shall control, with the
conflicting provision of this Declaration being preempted. If any
provision of this Declaration is held void or preempted by
statute, ordinance or governmental rules and regulations, the
Board of Directors, on behalf of the Association, may seek
reformation of the affected provision to provide, insofar as
possible, implementation of the original intent of Declarant. |
