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HIGH VIEW RANCH
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
STATE OF
TEXAS §
§ KNOW
ALL MEN BY THESE PRESENTS:
COUNTY OF
HAYS §
WHEREAS,
Hays Estrellita, Ltd. , a Texas limited partnership, Ann Michelle Debes
Watkins 1992 Trust, John P. Wolff, Carol Wolff, and Judith R. White
(jointly herein referred to as "Declarant"), are the owners of certain
real property located in Hays County, Texas ("Property");
and
WHEREAS, Declarant desires
to convey the Property subject to certain protective covenants,
conditions, restrictions, liens, and charges set forth below;
and
WHEREAS, Declarant desires
to create and carry out a uniform plan for the improvement, development
and sale of the Property for the benefit of the present and future owners
of the Property.
NOW,
THEREFORE, it is declared (i) that all of the Property shall be held,
sold, conveyed, and occupied subject to the following easements,
restrictions, covenants, and conditions, which are for the purpose of
protecting the value and desirability of, and which shall run with, the
Property and shall be binding on all parties having any right, title, or
interest in or to the Property or any part thereof, their heirs,
successors, and assigns, and shall inure to the benefit of each Owner
thereof; an (ii) that each contract or deed which may hereafter be
executed with regard to the Property or any portion thereof shall
conclusively be held to have been executed, delivered, and accepted
subject to the following covenants, conditions, and restrictions
regardless of whether or not the same are set out or referred to in said
contract or deed.
Unless the context otherwise
specifies or requires, the following words and phrases when used in this
Declaration shall have the following
meanings:
1.01
Architectural Committee. "Architectural Committee"
shall mean the committee created pursuant to this Declaration to review
and approve plans for the constructions of Improvements upon the
Property.
1.02
Architectural Committee Rules. "Architectural Committee
Rules" shall mean the rules and regulations adopted by the Architectural
Committee, as the same may be amended from time to
time.
1.03
Articles. "Articles" shall mean the Articles of
Incorporation of Driftwood High View Ranch Owners Association, Inc., which
shall be filed in the office of the Secretary of State of the State of
Texas, as from time to time
amended.
1.04
Assessment. "Assessment" or "Assessments" shall mean
such assessments as may be levied by the Association under the terms and
provisions of this
Declaration.
1.05
Association. "Association" shall mean Driftwood High
View Ranch Owners Association, Inc., a Texas non-profit
corporation.
1.06
Board. "Board" shall mean the Board of Directors of the
Association.
1.07
Bylaws. "Bylaws" shall mean the Bylaws of the Association as
adopted by the Board, and as from time to time
amended.
1.08
Common Area. "Common Area" shall mean all real
property, including the improvements thereto, owned by the Association for
the common use and enjoyment of the Owners. The Common Area to be owned by
the Association as of the date hereof is described on Exhibit "A,"
attached to and incorporated into this document by
reference.
1.09
Declarant. "Declarant" shall mean Hays Estrellita, Ltd., a
Texas limited partnership, Ann Michelle Debes Watkins 1992 Trust, John P.
Wolff, Carol Wolff, and Judith R. White, their duly authorized
representatives or their respective successors or assigns; provided that
any assignment of the rights of Hays Estrellita, Ltd., a Texas limited
partnership, Ann Michelle Debes Watkins 1992 Trust, John P. Wolff, Carol
Wolff, and Judith R. White as Declarant must be expressly set forth in
writing and the mere conveyance of a portion of the Property without
written assignment of the rights of Declarant shall not be sufficient to
constitute an assignment of the rights of Declarant
hereunder.
1.10
Declaration. "Declaration" shall mean this instrument,
and as it may be amended from time to
time.
1.11
Improvement. "Improvement" shall mean every structure
and all appurtenances thereto of every type and kind, including but not
limited to buildings, Outbuildings, storage sheds, barns, patios, tennis
courts, swimming pools, garages, storage buildings, fences, screening
walls, retaining walls, stairs, decks, landscaping, poles, signs, exterior
air conditioning, water softener fixtures or equipment, and poles, pumps,
wholes, tanks, reservoirs, pipes, lines, meters, antennas, towers and
other facilities used in connection with water, sewer, gas, electric,
telephone, regular or cable television, or other
utilities.
1.12
Member. "Member" or "Members" shall mean any person,
persons, entity, or entities holding membership rights in the
Association.
1.13
Mortgage. "Mortgage" shall mean any mortgage or deed of
trust covering any portion of the Property given to secure the payment of
a debt.
1.14
Mortgagee. "Mortgagee" or "Mortgagees" shall mean the
holder or holders of any Mortgage or
Mortgages.
1.15
Owner. "Owner" or "Owners" shall mean a person or
persons, entity or entities, including Declarant, holding a fee simple
interest in any portion of the Property, but shall not include a
Mortgagee.
1.16
Outbuildings. “Outbuildings” shall mean to include a
single garage, either attached or detached, for not less that two cars, an
office, barns, guest house, and servants’ quarters detached from the
building; and such garage and servants quarters may include a laundry room
and laundry services to be used for the convenience of the occupants of
the dwelling house and not as a public
laundry.
1.17
Person. "Person" or "Persons" shall mean any
individual, individuals, entity, or entities having the legal right to
hold title to real
property.
1.18
Plans and Specifications. "Plans and Specifications"
shall mean any and all documents designed to guide or control the
construction or erection of any Improvement, including but not limited to
those indicating location, size, shape, configuration, materials, site
plans, excavation and grading plans, foundation plans, drainage plans,
landscaping and fencing plans, elevation drawings, floor plans,
specifications on all building products and construction techniques,
sample of exterior colors, plans for utility services, and all other
documentation or information relevant to such
improvement.
1.19
Plat. “Plat” shall mean that certain subdivision plat
recorded in Volume ___, Page ___, Plat Records of Hays County, Texas, as
amended from time to
time.
1.20
Property. "Property" shall mean that real property which is subject
to the terms of this Declaration, which is comprised of the property
described on Exhibit "B," attached to and incorporated herein by
reference, less any land withdrawn from the Property in accordance with
Section 2.02 below.
1.21
High View Ranch Restrictions. "High View Ranch
Restrictions" shall mean this Declaration, as the same may be amended from
time to time, together with High View Ranch Rules, Committee Rules and the
Articles and Bylaws of the Association from time to time in effect, as the
same may be amended from time to
time.
1.22 High
View Ranch Rules. "High View Ranch Rules" shall mean the rules and
regulations adopted by the Board as the same may be amended from time to
time.
1.23
Supplemental Declaration. "Supplemental Declaration"
shall mean and refer to any declaration of covenants, conditions and
restrictions which may be recorded hereafter in order to withdraw land
from the Property.
1.24
Tract. "Tract”' shall mean and refer to any one of the
plots or tracts of land subdivided within the Property.
ARTICLE II
DEVELOPMENT OF THE PROPERTY
2.01
Development. Owners, including Declarant, may divide or
subdivide the Property into smaller tracts of no less than twenty-five
acres each.
ARTICLE III
GENERAL RESTRICTIONS
The Property (and the
improvements situated thereon ) shall be occupied and used subject to the
following covenants and
restrictions:
3.01.
Residential, Wildlife Habitat and Agricultural
Purposes. The Property shall be used exclusively for single family
residential purposes (but may include an office for an Owner’s personal
business), wildlife habitat or agricultural business consistent with
containing and maintaining an agricultural tax exemption; whether the
occupants are Owners of a Tract or are occupying a Tract pursuant to a
rental or leasing arrangement.
3.02. Violation
of Laws. No Owner shall permit anything to be done or kept on his
Tract which would violate any applicable public law or zoning
ordinance.
3.03
Offensive Activities. No noxious or offensive
activity shall be conducted on any portion of the Property that will
adversely affect the peace, quiet, comfort or serenity of any other
Owners. This prohibition shall include, but not be limited to, noise
pollution such as barking dogs, other noisy animals, loud music, music
concerts, vehicle racing, industrial manufacturing, junkyards or any other
activity that can be construed as out of character in regard to the intent
of these Restrictions. No exterior horns, whistles, bells, or sirens
(other than security devices used exclusively for security purposes) shall
be located, used, or placed on any portion of the Property. No noise or
other nuisance shall be permitted to exist or operate upon any portion of
the Property so as to be offensive or detrimental to any other portion of
the Property or to its occupants. In order to protect the water quality of
the Property, only biodegradable herbicides, pesticides, fertilizers and
like material shall be permitted to be placed upon the ground or on
vegetation.
3.04.
Rubbish and Debris. No rubbish or debris of any kind
shall be placed or permitted to accumulate upon the Property or any Tract
and no odors shall be permitted to arise therefrom so as to render the
Property or any portion of it unsanitary or unsightly. Refuse, garbage,
and trash shall be kept at all times in covered containers appropriately
screened from view. The Property nor any part thereof shall be used or
maintained as a dumping ground for rubbish. No incinerators or other
equipment for the storage or disposal of such material shall be permitted.
No junk, repair, or wrecking yard shall be located on the Property or any
Tract.
3.05
Antennae. No antenna, tower or other devices designed
to receive telecommunication signals shall be permitted that exceed of
forty-five feet in height from the
ground.
3.06
Insurance Rates. Nothing shall be done or kept on the Property
which would increase the rate of insurance or cause the cancellation of
insurance on any Tract.
3.07
Subdividing. No portion of the Property shall be
further divided or subdivided to create a new Tract containing less than
twenty-five (25) acres, nor may any easements or other interests in the
Property or any Tract less than the whole be conveyed. Any subdividing of
any portion of the Property shall be in accordance with all applicable
ordinances, rules and regulations of Hays County and other applicable
governing bodies.
3.08
Dwelling Size and Style. For any residence located on
the Property, (i) the minimum floor area, exclusive of porches (screened
or open) and garages, shall be 1,500 square feet, (ii) shall be single
family only, and (iii) shall have roofs, exteriors and landscaping that
blend favorably with the aesthetics of the High View Ranch and surrounding
countryside. No structure shall be taller than 40 feet. It is also
contemplated that dwellings be of hill country or southwestern style, or
interpretation thereof, and follow good design as to proportions, scale,
color-coordination, and be of materials that are compatible with the
surroundings (specifically, no reflective materials are to be used for
siding or roofing). Porches are encouraged; stone veneer is also
encouraged.
3.09.
Animals. No commercial breeding, housing or production
of large animals, birds, swine, emus, reptiles or ostriches will be
permitted on the Property. Horses, llamas, alpacas, sheep, goats and
cattle will be permitted on the Property, but no more mature animals than
1 unit per three acres shall be permitted. Further, no commercial
breeding, housing or production of small animals, birds, chickens,
reptiles, game birds or game animals shall be permitted on the
Property.
3.10
Hunting. Commercial hunting shall not be permitted on
the Property.
3.11
Repair of Improvements. All Improvements upon any of
the Property shall at all times be kept in good condition and repair and
adequately painted and otherwise
maintained.
3.12
Roofing Materials. Roofs shall be constructed of the
following materials: (i) wood shingles; (ii) asphalt three (3) tab
composition shingles ; (iii) non-reflective metal; or (iv)
tile.
3.13
Septic Systems. Installation of septic tank soil-
absorption sewerage disposal system shall be in accordance with the
minimum recommendations by the Division of Sanitary Engineering, Texas
State Department of Health, and inspected by a duly authorized agent of
Hays County Health Department or other appropriate governing bodies. The
drainage of any sewage into any road, ditch, surface easement, or water
body, either directly or indirectly is prohibited. Outside toilets,
privies and cesspools shall be prohibited on the Property except for
temporary chemical toilets placed at an active construction
site.
3.14
Mining and Drilling. No portion of the Property shall
be used for the purpose of mining, quarrying, drilling, boring, or
exploring for or removing oil, gas, or other hydrocarbons, minerals of any
kind, rocks, stones, sand, gravel, aggregate, or
earth.
3.15
Unsightly Articles; Vehicles. No unsightly articles
shall be permitted to remain on any Tract so as to be visible from
adjoining property or public or private thoroughfares. Without limiting
the generality of the above, trailers, graders, trucks (other than
pickups), boats, tractors, campers, wagons, buses, motorcycles, motor
scooters, and garden maintenance equipment, shall be kept at all times,
except when in actual use, screened from view and no repair or maintenance
work shall be done on any of the foregoing, or on any automobile (other
than minor emergency repairs), except in enclosed garages or other
structures. Service areas, storage areas, compost piles and facilities for
hanging, drying, or airing clothing or household fabrics shall be
appropriately screened from public view and no lumber, grass, plant waste,
shrub or tree clippings, metals, bulk materials, scrap, or refuse of trash
shall be kept, stored or allowed to accumulate on any portion of the
Property.
3.16
Temporary Structures, Mobile and Manufactured Homes, Travel
Trailers and Recreational Vehicles. No garage, trailer, tent, shack,
barn, or other outbuilding shall be used for residential purposes on the
Property, on a temporary or permanent basis. Temporary contractors'
buildings may be used during construction of improvements. No mobile home
or manufactured housing shall be parked or placed on the Property or any
Tract at any time, and no travel trailers or recreational vehicles shall
be parked on the Property or any Tract so as to be visible from adjoining
property or public or private thoroughfares. No boat, motor home and/or
travel trailer may be parked in view of adjoining property or public or
private thoroughfares.
3.17
Unfinished Structures. No structure shall remain
unfinished for more than eight (8) months after the same has been
commenced.
3.18
Setback Requirements. Setback requirements for Tracts
are (i) 200 feet from any road upon which the Property or Tract abuts,
(ii) 200 feet from the boundary line of the Property or any Tract unless
the Owner of such Tract owns contiguous Tract(s) and in that instance, no
setback is applicable to the boundary line between such contiguous Tracts
and (iii) any other set back requirements imposed by applicable
governmental entity. Notwithstanding anything contained herein to the
contrary, Tracts 1 and 2 (as shown on the Plat), shall have a setback
requirement of fifty feet (50’) from the south boundary line of such
Tracts; Tract 5 (as shown on the Plat), shall have a setback requirement
of one hundred fifty feet (150’) from the east boundary line of such
Tract; Tract 8 (as shown on the Plat), shall have a setback requirement of
one hundred fifty feet (150’) from the west boundary line of such Tract
and a setback requirement of three hundred feet (300’) from the south
boundary line of such
Tract.
3.19 Rentals.
Nothing in this Declaration shall prevent the rental of any Tract and the
Improvements thereon by the Owner thereof for residential
purposes.
3..20
Private Roadway. The Owners shall pay for the
maintenance of the private roadway that runs through the Property (the
“Road”) being more fully described on Exhibit “A” attached hereto.
Specifically, each Owner shall pay annually a Road assessment of
$15/acre/year per Road entrance basis, with the maximum annual assessment
being $1,000 per Road entrance and the minimum annual assessment being
$500 per Road entrance (by way of example only, if a Tract contains 100
acres, the annual assessment will be $1,000.00; if a Tract contains 10
acres, the annual assessment will be $500.00). Circle driveways into a
Tract will be considered a single Road entrance. If a majority of the
Owners agree that a lesser annual Road assessment will be adequate to
maintain the Road, then the Owners will only be liable for the agreed upon
lesser Road assessment amount. Notwithstanding anything contained herein
to the contrary, Hays Estrellita, Ltd. shall not be responsible for the
payment of any maintenance expenses or assessments of the Road until
January 1, 2005.
3.21
Vegetative Diseases. The Association shall have the
right to monitor the Tracts for the presence of vegetative diseases, such
as Oak Wilt, and if a vegetative disease is found, request that the Owner
of such Tract take such curative and preventative action as may be
necessary to prevent the spread of such disease. If such Owner does not
take such action, the Association is authorized to do so and all expenses
of such action will be assessed to such
Owner.
3.22
Fencing. All fences shall be properly maintained and be
constructed of such material as to be in conformance with the hill
country. Specifically, fencing material may be wooden, sheep and goat
wire, barbed wire, and smooth wire; posts may be wooden, t-posts, or metal
(either natural or painted black or dark green). No chain link type
fencing is permitted on the Property. Rock fences and masonry columns will
be allowed.
3.23
Fires. Brush burning and fireworks shall only be
permitted in wet weather conditions and with prior notice given by the
Owner to the other Owners. Fireworks shall not be used in anyway that will
startle livestock or persons on other Tracts. All campfires or cooking
fires shall be in enclosed areas or pits.
3.24.
Outdoor Lighting. Due to the rural nature of the
Property, and the desire of Declarant to maintain “dark skies”, all Owners
shall abide by the lighting provisions of the Dripping Springs Lighting
Ordinance, as amended from time to time. All outdoor lighting shall be
shielded in such a manner as not to interfere with other Owners enjoyment
of the nighttime sky.
3.25 No
Warranty of Enforceability. While Declarant has no
reason to believe that any of the restrictive covenants or other terms and
provisions contained in this Article III or elsewhere in this Declaration
are or may be invalid or unenforceable for any reason or to any extent,
Declarant makes no warranty or representation as to the present or future
validity or enforceability of any such restrictive covenants, terms or
provisions. Any Owner acquiring a Tract in reliance on one or more of such
restrictive covenants, terms or provisions shall assume all risks of the
validity and enforceability thereof and, by acquiring the Tract, agrees to
hold Declarant harmless therefrom.
ARTICLE IV
DRIFTWOOD HIGH VIEW RANCH OWNERS ASSOCIATION,
INC.
4.01
Organization. The Declarant shall, at such time as
Declarant deems appropriate, cause the formation and incorporation of the
Association. The Association shall be a nonprofit corporation created for
the purposes, charged with the duties, and vested with the powers
prescribed by law or set forth in its Articles and Bylaws and in this
Declaration. Neither the Articles nor the Bylaws shall for any reason be
amended or otherwise changed or interpreted so as to be inconsistent with
this Declaration.
4.02
Membership. Any Person, upon becoming an Owner, shall
automatically become a Member of the Association. Membership shall be
appurtenant to and shall run with the property interest which qualifies
the Owner thereof for membership, and membership may not be severed from,
or in any way transferred, pledged, mortgaged, or alienated, except
together with the title to the said property
interest.
4.03
Voting Rights. The right to cast votes, and the number
of votes which may be cast, for election of members to the Board of
Directors of the Association, and on all other matters to be voted on by
the Members, shall be calculated as provided below.
(a) The Owner of
each Tract within the Property shall have one vote for each acre contained
in each Tract so
owned.
4.04
Powers and Authority of the Association. The Association shall have
the powers of a Texas nonprofit corporation, subject only to such
limitations upon the exercise of such power as are expressly set forth in
this Declaration. It shall further have the power to do and perform any
and all acts which may be necessary or proper for or incidental to the
exercise of any of the express powers granted to it by the laws of Texas
or by this Declaration. Without in any way limiting the generality of the
two preceding sentences, the Association and the Board, acting on behalf
of the Association, shall have the power and authority at all times as
follows:
(a)
High View Ranch Rules and Bylaws. To make, establish, and
promulgate, and in its discretion to amend or repeal and re-enact, such
High View Ranch Rules and Bylaws, not in conflict with this Declaration,
as it deems proper covering any and all aspects of its
functions.
(b)
Insurance. To obtain and maintain in effect policies of insurance
which, in the opinion of the Board, are reasonably necessary or
appropriate to carry out the Association
functions.
(c)
Records. To keep books and records of the Association's
affairs.
(d)
Assessments. To levy assessments as provided in Article VI below.
An assessment is defined as that sum which must be levied in the manner
and against the property set forth in Article VII in order to raise the
total amount for which the levy in question is being
made.
(e) Right
of Entry and Enforcement. To enter at any time in an emergency (or in
the case of a non-emergency, after twenty-four (24) hours written notice),
without being liable to any Owner, upon any Tract for the purpose of
enforcing the High View Ranch Restrictions or for the purpose of
maintaining or repairing any area, Improvement or other facility to
conform to the High View Ranch Restrictions, and the expense incurred by
the Association in connection with the entry upon any Tract and the
maintenance and repair work conducted thereon shall be a personal
obligation of the Owner of the Tract entered upon, shall be a lien upon
the Tract entered upon and Improvements thereon, and shall be enforced in
the same manner and to the same extent as provided in Article VII hereof
for regular and special assessments. The Association shall have the power
and authority from time to time, in its own name and on its own behalf, or
in the name of and on behalf of any Owner who consents thereto, to
commence and maintain actions and suits to enforce, by mandatory
injunction or otherwise, or to restrain and enjoin, any breach or
threatened breach of the High View Ranch Restrictions. The Association is
also authorized to settle claims, enforce liens and take all such action
as it may deem necessary or expedient to enforce the High View Ranch
Restrictions.
(f)
Legal and Accounting Services. To retain and pay for legal and
accounting services necessary or proper in the operation of the
Association.
(g)
Conveyances. To grant and convey to any person or entity the real
property and/or other interest therein including fee title, leasehold
estates, easements, rights-of-way, or mortgages out of, in, on, over, or
under any Association property for the purpose of constructing, erecting,
operating, or maintaining the
following:
(1)
Parks, parkways or other recreational facilities or
structures;
(2)
Roads, streets, walks, driveways, trails and
paths;
(3) Lines,
cables, wires, conduits, pipelines or other vices for utility
purposes;
(4)
Sewers, water systems, storm water drainage systems, sprinkler systems,
and pipelines;
and/or
(5) Any
similar public, quasi-public or private improvements or
facilities.
Nothing above,
however, shall be construed to permit use or occupancy of any Improvement
or other facility in a way which would violate applicable use and
occupancy restrictions imposed by other provisions of this
Declaration.
(h)
Manager. To retain and pay for the services of a person or firm
(the Manager") to manage and operate the Association, including its
property, to the extent deemed advisable by the Board. Additional
personnel may be employed directly by the Association or may be furnished
by the Manager. To the extent permitted by law, the Association and the
Board may delegate any other duties, powers and functions to the Manager.
The members of the Association hereby release the Association and the
members of the Board from liability for any omission or improper exercise
by the Manager of any such duty, power, or function so
delegated.
(i)
Association of Property Services. To pay for water, sewer, garbage
removal, landscaping, gardening and all other utilities, services and
maintenance for the property of the Association; to maintain and repair
easements, roads, roadways, rights-of-way, parks, parkways, median strips,
sidewalks, paths, trails, ponds, lakes and other areas of the Property, as
appropriate; and to own and operate any and all types of facilities for
both active and passive
recreation.
(j)
Other Services and Properties. To obtain and pay for any other
property and services, and to pay for other taxes or assessments which the
Association or the Board is required to secure or to pay for pursuant to
applicable law, the terms of this Declaration, or the Articles or Bylaws
of the
Association.
(k)
Construction on Association Property. To construct new
improvements or additions to Association properties, subject to the
approval of the Architectural Committee as required by this
Declaration.
(l)
Contracts. To enter into contracts with Declarant and other
persons on such terms and provisions as the Board shall determine, to
operate and maintain any Common Area or to provide any service or perform
any function on behalf of Declarant or other
person.
(m)
Property Ownership. To acquire and own and to dispose of all
manner of real and personal property, whether by grant, lease gift, or
otherwise.
4.05
Maintenance. The Association shall (i) maintain all streets which
have been completed but not accepted by the appropriate governmental
entity for maintenance, (ii) maintain all Common Area dedicated to the
Association for maintenance, by or with the consent of Declarant, and
(iii) maintain the landscaping and entry sign located at the entrance of
the Property, and all median strips which have not been accepted by any
governmental entity for
mainte-nance.
4.06 Common Area.
Subject to and in accordance with this Declaration, the Association,
acting through the Board, shall have the following
duties:
(a) To
accept, own, operate, and maintain all Common Area which may be conveyed
or leased to it by Declarant, together with all improvements of whatever
kind and for whatever purpose which may be located in said areas; and to
accept, own operate, and maintain all other property, real and personal,
conveyed or leased to the Associa-tion by Declarant and to maintain in
good repair and condition all lands, improvements, and other Association
property owned by, or leased to, the Association. Such maintenance shall
include but not be limited to mowing and removal of rubbish or debris of
any kind.
(b) To
pay all real and personal property taxes and other taxes and assessments
levied upon or with respect to any property owned by or leased to the
Association, to the extent that such taxes and assessments are not levied
directly upon the members of the Association. The Association shall have
all rights granted by law to contest the legality and the amount of such
taxes and
assessments.
(c) To
execute mortgages, both construction and permanent, for construction of
facilities, including improvements on property owned by or leased to the
Association. Financing may be effected through conventional mortgages or
deeds of trust, the issuance and sale of development or other bonds, or in
any other form or manner as may be deemed appropriate by the Association.
The mortgage or other security interest given to secure repayment of any
debt may consist of a first, second, or other junior lien as shall be
deemed appropriate by the Association, on the improvement or other
facility to be constructed, together with such underlying and surrounding
lands as the Association deems appropriate. The debt secured by such
mortgage or other security instrument may be retired from and secured by
the revenues generated by dues, use fees, assessment of the members of the
Association, or otherwise, or any combination thereof, as may be deemed
appropriate by the Association, but subject to the limitations imposed by
this
Declara-tion.
(d)
To take out and maintain current a policy of liability insurance coverage
to cover accidental bodily injury and/or death caused by the use and
enjoyment in the Common Area. Such insurance shall be in an amount as the
Board shall deem
appropriate.
4.07
Indemnification. The Association shall indemnify any person who was
or is a party, or is threatened to be made a party to any threatened,
pending, or completed action, suit, or proceeding, whether civil,
criminal, admin-istrative or investigative by reason of the fact that he
is or was a director, officer, committee member, employee, servant or
agent of the Association against expenses, including attorney's fees,
reasonably incurred by him in connection with such action, suit of
proceeding if it is found and determined by the Board or a Court that he
(1) acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the Asso-ciation, or (2) with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by settlement, or upon a plea of Nolo Contendere, of its
equivalent, shall not of itself create a presumption that the person did
not act in good faith or in a manner which he reasonably believed to be
in, or not opposed to, the best interests of the Association, or, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful. The Board may purchase and maintain
insurance on behalf of any person who is or was a director, officer,
committee member, employee, servant, or agent of the Association, against
any liability asserted against him or incurred by him in any such
capac-ity, or arising out of his status as such, whether or not the
Association would have the power to indemnify him against such liability
hereunder or otherwise.
ARTICLE V
ARCHITECTURAL COMMITTEE
5.01 Membership
of Architectural Committee. The Architectural Committee shall consist
of not more than three (3) voting members ("Voting Members"). The initial
voting members of the Architec-tural Committee shall be David Culver, John
Wolff and Ann Michelle Debes
Watkins.
5.02
Action by Architectural Committee. Items presented to
the Architectural Committee shall be decided by a majority vote of the
Voting Members.
5.03
Advisory Members. The Voting Members may from time to
time designate Advisory
Members.
5.04
Term. Each member of the Architectural Committee shall
hold office until such time as he or she has resigned or has been removed
or his or her successor has been appointed, as provided
herein.
5.05
Adoption of Rules. The Architectural Committee may
adopt such procedural and substantive rules, not in conflict with this
Declaration, as it may deem necessary or proper for the performance of its
duties, including but not limited to a building code, a fire code, a
housing code, and other similar codes as it may deem necessary and
desirable. Each Owner shall comply with said rules as the same may be
amended from time to time, and failure to comply with said rules shall
constitute a default of this Declaration, and any Owner, including
Declarant, at its sole expense and/or the Board may seek any of the
remedies set forth herein for default of this
Declaration.
5.06
Review of Proposed Construction. Whenever in this
Declaration, or in any Supplemental Declaration, the approval of the
Architectural Committee is required, it shall have the right to consider
all of the Plans and Speci-fications for the Improvement or proposal in
question and all other facts which, in its sole discretion, are relevant.
Prior to the commencement of any construction of any Improvement on the
Property or any portion thereof, the Plans and Specifi-cations therefor
shall be submitted to the Architectural Committee, and construction
thereof may not commence unless and until the Architectural Committee has
approved such Plans and Specifications in writing. The Architectural
Committee shall consider and act upon any and all Plans and Specifications
submitted for its approval pursuant to this Declaration, and perform such
other duties assigned to it by this Declaration or as from time to time
shall be assigned to it by the Board, including the inspection of
construction in progress to assure its conformance with Plans and
Specifications approved by the Architectural Committee. The Architectural
Committee may review Plans and Specifications submitted for its review and
such other information as it deems proper. Until receipt by the
Architectural Committee of any information or document deemed necessary by
the Architectural Committee, it may postpone review of any Plans and
Specifications submitted for approval. No Improvement shall be allowed on
any Tract which is of such size or archi-tectural design or involves the
use of such landscaping, color schemes, exterior finishes and materials
and similar features as to be incompatible with high quality, restricted
residential development within the Property. The Architectural Committee
based upon the restrictions set forth in the preceding sentence and the
decision of the Architectural Committee shall be final and binding so long
as it is made in good faith. The Architectural Committee shall not be
responsible for reviewing any proposed Improvement, nor shall its approval
of any Plans or Specifications be deemed approval thereof from the
standpoint of structural safety, engineering soundness, or conformance
with building or other
codes.
5.07
Variance. The Architectural Committee may grant
variances from compliance with any of the provisions of this Declaration,
or any Supplemental Declaration, when, in the opinion of the Architectural
Committee, in its sole and absolute discretion, such variance will not
impair or detract from high quality development of the Property, and such
variance is justified due to unusual or aesthetic considerations or
unusual circumstances. All variances must be evidence by a written
instrument, in recordable form, and must be signed by a majority of the
voting members of the Architectural Committee. The granting of such
variance shall not operate to waive or amend any of the terms and
provisions of these covenants and restrictions applicable to the Tracts
for any purpose except as to the particular property and in a particular
instance covered by the variance, and such variance shall not be
considered to establish a precedent or future waiver, modification, or
amendment of the terms and provisions
hereof.
5.08
Actions of the Architectural Committee. The
Architectural Committee may, by resolution, unanimously adopted in
writing, designate one or two of its members or an agent acting on its
behalf to take any action or perform any duties for and on behalf of the
Architectural Committee. In the absence of such designation, the vote of a
majority of all of the members of the Architectural Committee taken
without a meeting, shall constitute an act of the Architec-tural
Committee.
5.09
No Waiver of Future Approvals. The approval or consent
of the Architectural Committee to any Plans or Spec-ifications for any
work done or proposed or in connection with any other matter requiring the
approval or consent of the Architectural Committee shall not be deemed to
consti-tute a waiver of any right to withhold approval or consent as to
any Plans and Specifications, or other matter whatever, subsequently or
additionally submitted for approval or consent by the same or a different
person.
5.10
Work in Progress. The Architectural Committee, at its
option, may inspect all work in progress to insure compliance with
approved Plans and
Specifications.
5.11
Nonliability of Architectural Committee Members.
Neither the Architectural Committee, nor any member thereof, nor the
Board, nor any member thereof, shall be liable to the Association or to
any Owner or to any other person for any loss, damage or injury arising
out of their being in any way connected with the performance of the
Architectural Committee's or the Board's respective duties under this
Declaration unless due to the willful misconduct or bad faith of the
Architectural Committee or its member or the Board or its member, as the
case may be. Neither the Architectural Committee, nor the members thereof,
shall be liable to any Owner due to the construction of any Improvement
within the Property.
5.12
Address. Plans and Specifications shall be submitted to
the Architectural Committee, c/o David Culver at 114 Oak Park Drive,
Boerne, Texas 78006, or such other address as may be designated by
Declarant, its successors and assigns, from time to
time.
5.13
Fees. The Architectural Committee shall have the right
to require a reasonable submission fee for each set of Plans and
Specifications submitted for its
review.
5.14
Certificate of Compliance. Upon completion of any
Improvement approved by the Architectural Committee and upon written
request by the Owner of the Tract, the Architectural Committee shall issue
a Certificate of Compliance in a form suitable for recordation. The
Certificate shall indemnify the Tract and the Improvement, the use or uses
to be conducted thereon, and the Plans and Specifications on file with the
Architectural Committee pursuant to which the Improvements were made and
shall specify that the Improvements comply with the approved Plans and
Specifications. The Certificate shall not be construed to certify the
acceptability, sufficiency, or approval by the Architectural Committee of
the actual construction of the Improvements or of the workmanship or
materials thereof. The Owner is hereby notified that the Certificate in no
way warrants, except as set forth above, the sufficiency, acceptability,
or approval by the Architectural Committee of the construction,
workmanship, materials, or equipment of the Improvements. Preparation and
recordation of such a Certificate shall be at the expense of the Owner of
the improved Tract.
ARTICLE VI
FUNDS AND ASSESSMENTS
6.01
Assessments.
(a)
Assessments established by the Board pursuant to the provisions of this
Article VI shall be levied on a uniform basis against each Tract within
the Property. The amount of the Assessment shall be determined by dividing
the total amount determined by the Board to be necessary pursuant to
Section 6.03 and/or 6.04 hereof by the total number of acres within the
Property at the time the Assess-ment is levied, as determined by reference
to each Plat of a portion of the Property which is of record at the time
the Assessment is
levied.
(b) Each
unpaid assessment, together with interest and costs of collection, as
provided below, shall be the personal obligation of the Owner of the
Property against which the Assessment fell due, and shall become a
vendor's lien against each such Tract and all its Improvements. The
Association may enforce payment of such Assessments in accordance with the
provisions of this
Article.
6.02 Maintenance
Fund. The Board shall establish a maintenance fund into which shall be
deposited all monies paid to the Association and from which disbursements
shall be made in performing the functions of the Association under this
Declaration. The funds of the Association must be used solely for purposes
authorized by this Declaration, as it may from time to time be
amended.
6.03 Regular Annual
Assessments. Prior to the begin-ning of each fiscal year, the Board
shall estimate the expenses to be incurred by the Association during such
year in performing its functions under the High View Ranch Restrictions,
including but not limited to, the cost of all maintenance, the cost of
providing street lighting, the cost of enforcing the High View Ranch
Restrictions, and a reasonable provision for contingencies and appropriate
replacement reserves, less any expected income and any surplus from the
prior year's fund. Assessments sufficient to pay such estimated net
expenses shall then be levied as provided herein, and the level of
Assessments set by the Board shall be final and binding so long as it is
made in good faith. If the sums collected prove inadequate for any reason,
including non payment of any individual Assessment, the Association may at
any time, and from time to time, levy further Assessments in the same
manner as provided above. All such regular Assessments shall be due and
payable to the Association at the beginning of the fiscal year or during
the fiscal year in equal monthly installments on or before the first day
of each month, or in such other manner as the Board may designate in its
sole and absolute discretion. In no event shall the regular annual
assessment per acre for the year 2003 exceed the sum of $2.00. Thereafter,
at the Board's sole and absolute discretion, the maximum regular annual
assessment permitted hereunder may be increased by no more than five
percent (5%) per year. The maximum regular annual assessment may be
increased by more than five per cent (5%) during a year only by
affirmative vote of two-thirds (2/3) of each class of Members, voting in
person or by proxy, at a meeting duly called for such
purpose.
6.04
Special Assessments. In addition to the regular annual
Assessments provided for above, the Board may levy special Assessments
whenever in the Board's opinion such special Assessments are necessary to
enable the Board to carry out the mandatory functions of the Association
under the High View Ranch Restrictions. The amount of any special
Assessments shall be at the reasonable discretion of the Board. In no
event shall the total special assessment per acre during the year 2003
exceed the sum of $1.00. Thereafter, the maximum special assessment
permitted hereun-der may increase by no more than five percent (5%) per
year. In addition to the special assessments authorized above, the
Association may, in an assessment year, levy a special assessment
applicable to that assessment year only for the purpose of defraying, in
whole or in part, the cost of any construction, reconstruction, repair, or
replacement of a capital improvement upon the Common Area, provided that
any such special assessment shall have the assent of two-thirds (2/3) of
the votes for each class of Members who are voting in person or by proxy
at a meeting duly called for this
purpose.
6.05
Owner's Personal Obligation for Payment of
Assess-ments. The regular and special Assessments provided for herein
shall be the personal and individual debt of the Owner of the Tract
covered by such Assessments. No Owner may exempt himself from liability
for such Assessments. In the event of default in the payment of any such
Assessment, the Owner of the Tract shall be obligated to pay interest at
the highest rate allowed by applicable usury laws then in effect on the
amount of the Assessment from the due date thereof, together with all
costs and expenses of collec-tion, including reasonable attorneys'
fees.
6.06
Assessment Lien and Foreclosure. All sums assessed in
the manner provided in this Article but unpaid, shall, together with
interest as provided in Section 6.05, and the cost of collection,
including reasonable attorneys' fees, thereupon become a continuing lien
and charge on the Tract covered by such Assessment, which shall bind such
Tract in the hands of the Owner, and such Owner's heirs, devisees,
personal representatives, successors, or assigns. This lien shall be
superior to all other liens and charges against the said Tract, except
only for tax liens and all sums unpaid on a first mortgage lien or first
deed of trust liens of record, securing in either instance sums borrowed
for the acquisi-tion or improvement of the Tract in question. The
Association shall have the power to subordinate the aforesaid Assessment
lien to any other lien. Such power shall be entirely discretionary with
the Board and such subordination may be signed by an officer of the
Association to evidence the aforesaid Assessment lien, the Association may
prepare a written notice of Assessment lien setting forth the amount of
the unpaid indebtedness, the name of the Owner of the Tract covered by
such lien, and a description of the Tract. Such notice shall be signed by
one of the officers of the Associ-ation and shall be recorded in the
office of the County Clerk of Hays County, Texas. Such lien for payment of
Assessments shall attach with the priority set forth above from the date
that such payment become delinquent and may be enforced by the foreclosure
of the defaulting Owner's Tract by the Association in like manner as a
mortgage on real property subsequent to the recording of a notice of
Assess-ment lien as provided above, or the Association may insti-tute
suite against the Owner personally obligated to pay the Assessment and/or
for foreclosure of the aforesaid lien judicially. In any foreclosure
proceeding, whether judicial or not judicial, the Owner shall be required
to pay the costs, expenses, and reasonable attorneys' fees incurred. The
Association shall have the power to bid on the property at foreclosure, or
other legal sale and to acquire, hold, lease, mortgage, convey or
otherwise deal with the same. Upon the written request of any Mortgagee,
the Association shall report to said Mortgagee any unpaid Assessments
remaining unpaid for longer than thirty (30) days after the same are
due.
7.01 Reserved
Easements. All dedications, limitation, restrictions, and reservations
shown on the Plat and all grants and dedications of easements,
rights-of-way, restric-tions, and related rights, made by Declarant prior
to the Property becoming subject to this Declaration, are incorpo-rated
herein by reference and made part of this Declaration for all purposes, as
if fully set forth herein, and shall be construed as being adopted in each
and every contract, deed, or conveyance executed, or to be executed, by or
on behalf of Declarant conveying any part of the Property. Declarant
reserves the right to make changes in and additions to the said easements
and rights-of-way for the purpose of most efficiently and economically
developing the Property. Further, Declarant reserves the right, without
the necessity of the joinder of any Owner, or other person or entity, to
grant, dedicate, reserve or otherwise create, at any time or from time to
time, rights-of-way and easements for public utility purposes (including,
without limitation, gas, water, cable television, electricity, telephone
and drainage), in favor of any person or entity, along and on either or
both sides of any Tract line, which said easement shall have a maximum
width of 7.5 feet on each side of such Tract
line.
7.02
Installation and maintenance. There is hereby created
an easement upon, across, over and under all of the Property for ingress
and egress in connection with installing, replacing, repairing, and
maintaining all utilities, including, but not limited to, water, gas,
telephones, electricity and appurtenances thereto. By virtue of this
easement, it shall be expressly permissible for the utility companies and
other entities supplying service to install and maintain pipes, wire,
conduits, service lines, or other utility facilities or appurtenances
thereto, on above, across and under the property, within the public
utility easements from time to time existing and from service lines
situated within such easements to the point of service on or in any
Improvement. Notwithstanding any provision contained in this section, no
electrical lines, water lines or other utilities or appurtenances thereto
may be relocated on the Property until approved by Declarant or the
Architectural Committee. The utility companies furnish-ing service shall
have the right to remove all trees situated within the utilities easements
shown on the Plat, and to trim overhanging trees and shrubs located on
portions of the Property abutting such
easements.
7.03
Drainage Easements. Each owner covenants to provide
easements for drainage and water flow, as contours of land the arrangement
of Improvements approved by the Architectural committee thereon, require.
Each Owner further covenants not to disturb or displace any trees or other
vegetation within the drainage easements as defined in this Declaration
and shown on the Plat. There shall be no construction of Improvements,
temporary or permanent, in any drainage easement, except as approved in
writing by the Architectural
Committee.
7.04
Surface Areas. The surface of easement areas for
underground utility services may be used for planting of shrubbery, trees,
lawns, or flowers. However, neither the Declarant nor any supplier of any
utility service using any easement area shall be liable to any Owner or to
the Associ-ation for any damage done by them or either of them, or their
respective agents, employees, servants or assigns, to any of the aforesaid
vegetation as a result of any activity relating to the construction,
maintenance, operation, or repair of any facility in any such easement
area.
7.05
Common Area. Each Owner shall have an easement of use and enjoyment
in and to all Common Area which shall be appurtenant to and shall pass
with title to such Owner's Tract, subject to the following
provisions:
(a)
The right of the Association to suspend the Owner's voting
rights and right to use the Common Area for any period during which any
Assessment against such Owner's Tract remains unpaid, and for any period
during which the Owner is in violation of the rules and regulations of the
Association;
(b)
The right of the Association to dedicate or trans-fer all or
any part of the Common Area to any public agency, authority or utility for
such purposes and subject to such conditions as may be approved by a
majority vote of the
Members;
(c)
The right of the Association to borrow money for the purpose
of improving the Common Area and, in furtherance thereof, mortgage the
Common Area, all in accordance with the Articles and
Bylaws;
(d)
The right of the Association to make reasonable rules and
regulations regarding the use of the Common Area and any facilities
thereon; and
(e)
The right of the Association to contract for services with
third parties on such terms as the Association may
determine.
ARTICLE VIII
MISCELLANEOUS
8.01 Term.
This Declaration, including all of the covenants, conditions, and
restrictions hereof, shall run until December 31, 2023, unless amended as
herein provided. After December 31, 2023, this Declaration, including all
such covenants, conditions, and restrictions shall be automatically
extended for successive periods of ten (10) years each, unless amended or
extinguished by a written instrument executed by the Owners of at least
three-fourths (3/4) of the Tracts within the Property then subject to this
Declaration.
8.02
Amendment. This Declaration may be amended by the
recording in the Hays County Official Public Records of an instrument
executed and acknowledged by the President and Secretary of the
Association, setting forth the amendment and certifying that such
amendment has been approved by Owners enti-tled to cast at least
seventy-five percent (75%) of the number of votes entitled to be cast
pursuant to Section 4.03
hereof.
8.03
Notices. Any notice permitted or required to be given
by this Declaration shall be in writing and may be delivered either
personally or by mail. If delivery is made by mail, it shall be deemed to
have been delivered on the third (3rd) day (other than a Sunday or legal
holiday) after a copy of the same has been deposited in the United States
mail, postage prepaid, addressed to the person at the address given by
such person to the Association for the purpose of service of notices. Such
address may be changed from time to time by notice in writing given by
such person to the
Association.
8.04
Interpretation. The provisions of this Declara-tion
shall be liberally construed to effectuate the purposes of creating a
uniform plan for the development and operation of the Property and of
promoting and effectuating the funda-mental concepts of the Property set
forth in this Declara-tion. This Declaration shall be construed and
governed under the laws of the State of
Texas.
8.05
Compliance with Provisions of High View Ranch
Restrictions. Each Owner shall comply strictly with the provisions of
the High View Ranch Restrictions as the same may be amended from time to
time. Failure to comply with any of the High View Ranch Restrictions shall
constitute a violation of this Declaration, and shall give rise to a cause
of action to recover sums due for damages or injunctive relief or both,
maintainable by the Board on behalf of the Association or by an aggrieved
Owner.
8.06
Enforcement and
Nonwaiver.
(a)
Right of Enforcement. Except as otherwise provided
herein, any Owner at his own expense, Declarant, and/or the Board shall
have the right to enforce all of the provisions of High View Ranch
Restrictions. Such right of enforcement shall include both damages for,
and injunctive relief against, the breach of any such provision.
(b)
Nonwaiver. The failure to enforce any provision of the
High View Ranch Restrictions at any time shall not constitute a waiver of
the right there-after to enforce any such provision or any other provision
of said restrictions.
8.07
Construction.
(a)
Restrictions Severable. The provisions of the High View
Ranch Restrictions shall be deemed independent and severable, and the
invalidity or partial invalidity of any provision or portion thereof shall
not affect the validity or enforce-ability of any other provision or
portion
thereof.
(b)
Singular Includes Plural. Unless the context requires a
contrary construction, the singular shall include the plural and the
plural the singu-lar; and the masculine, feminine or neuter shall each
include the masculine, feminine and
neuter.
(c)
Captions. All captions and titles used in this
Declaration are intended solely for convenience of reference and shall not
enlarge, limit or other-wise effect that which is set forth in any of the
paragraphs, sections or articles
hereof.
IN WITNESS WHEREOF,
Declarant has executed this Declaration as of the _____ day of
___________, 2003.
Hays Estrellita, Ltd.
a Texas limited partnership
by its
general partner:
Parmano GP, Inc.
a Texas
corporation
By:______________________________________
E. F.
Romano, III, President
Ann Michelle Debes Watkins 1992
Trust
By:___________________________
Trustee
_______________________
John
P.
Wolff
_______________________
Carol
Wolff
_______________________
Judith
R. White
STATE OF
TEXAS §
COUNTY
OF ______________ §
This instrument
was acknowledged before me on this ____ day of __________________, 2003,
by E. F. Romano, III, President of Parmano GP, Inc., a Texas corporation
which is the general partner of Hays Estrellita, Ltd., a Texas limited
partnership, on behalf of said limited
partnership.
______________________________
Notary Public, State
of Texas
STATE OF TEXAS §
COUNTY OF ______________ §
This
instrument was acknowledged before me on this ____ day of
__________________, 2003, by _______________________, Trustee of Ann
Michelle Debes Watkins 1992 Trust, on behalf of said
trust.
______________________________
Notary
Public, State of Texas
STATE OF
TEXAS §
COUNTY
OF ______________ §
This instrument was acknowledged
before me on this ____ day of __________________, 2003, by John P.
Wolff.
______________________________
Notary Public, State of Texas
STATE OF
TEXAS §
§
COUNTY
OF ______________ §
This instrument was
acknowledged before me on this ____ day of __________________, 2003, by
Carol
Wolff.
______________________________
Notary Public, State of Texas
STATE OF TEXAS
§
§
COUNTY
OF ______________ §
This instrument was acknowledged
before me on this ____ day of __________________, 2003, by Judith R.
White.
______________________________
Notary
Public, State of Texas
EXHIBIT “A”
COMMON AREA/ROADWAY
EXHIBIT “B”
THE PROPERTY
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