Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/2/2018 9:48:29 AM JEFFREY D. KYLE Clerk
*1 ACCEPTED 03-17-00849-CV 21544131 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/2/2018 9:48 AM JEFFREY D. KYLE
CLERK No. 03-17-00849-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN In re Richard W. Jackson and Lisa C. Jackson , Relators. From the County Court at Law No. 1, Travis County, Texas Trial Court Cause No. C-1-CV-17-001833 SURREPLY IN RESPONSE TO AMENDED PETITION FOR WRIT OF MANDAMUS AND EMERGENCY MOTION TO STAY (1) TRIAL AND (2) TRIAL COURT ORDER DISSOLVING INJUNCTION Michael L. Navarre State Bar No. 00792711 mnavarre@bbsfirm.com BEATTY BANGLE STRAMA, PC 400 West 15th Street, Suite 1450 Austin, Texas 78701 (512) 879-5050 Telephone (512) 879-5040 Facsimile ATTORNEYS FOR REAL PARTIES IN INTEREST
TABLE OF CONTENTS
*2 TABLE OF CONTENTS ...................................................................................... i INDEX OF AUTHORITIES ................................................................................. ii INTRODUCTION ................................................................................................ 1 ARGUMENT AND AUTHORITIES ................................................................... 2 I. This Mandamus Is Moot Because There Is Only One Amendment
And It Has Been Recorded ......................................................................... 2 II. Ms. Cox And Ms. Ramsey Correctly Stated The Status Of Relators’ Claims ......................................................................................................... 3 III. Relators Failed To Respond To The Existence Of Two Changed Circumstances ............................................................................................. 4 IV. Relators’ Filing Of Their Sixth Amended Petition Is Not A Proper Basis For Mandamus Relief ....................................................................... 5 V. Relators Attempt To Reargue The Motion For Partial Summary Is Not A Proper Ground For Mandamus ........................................................ 7 CONCLUSION AND PRAYER .......................................................................... 8 RULE 52.3(j) CERTIFICATION ......................................................................... 9 CERTIFICATE OF SERVICE ............................................................................. 10 CERTIFICATE OF COMPLIANCE .................................................................... 10
i *3 INDEX OF AUTHORITIES Page F.D.I.C. v. Nueces Co., 886 S.W.2d 766 (Tex. 1994) ...................................................................... 3 In Re Uresti, 377 S.W.3d 696 (Tex. 2012) ...................................................................... 3 ii *4
INTRODUCTION Relators’ Reply is most noteworthy for what it does not contain. In their Petition, Relators claimed that there was no changed circumstance. Cox and Ramsey responded by identifying two changed circumstances. 1 First, recent discovery showed that Plaintiffs misled the trial court to obtain the temporary injunction. Second, as Relators previously admitted, there was a change in the law because, as Relators previously admitted, “the trial court reversed itself on the law.” 2 Relators’ Reply does not respond to the existence of these two changed circumstances.
While tacitly admitting the existence of changed circumstances that support the dissolution of the temporary injunction, Relators make several arguments that are either erroneous or self-inflicted. Cox and Ramsey respond as follows:
• Relators, not Cox and Ramsey, filed an amended petition with numerous new causes of action based on the recorded amendment. • Relators are in this position because they misled the trial court and began harassing property owners to rescind their signatures. • Contrary to Relators’ Reply, Cox and Ramsey did not state that Relators’ claims were not “live.” • Contrary to Relators’ Reply, the Restrictive Covenants expressly prohibit renting “without the prior written consent of Developer.” 3 1 Response to Mandamus at 3-5; 7-9. 2 Relators’ Emergency Motion for Relief at 2. 3 Tab J, Restrictive Covenants at Art. IV.5.
1 *5 Furthermore, as Relators’ pleadings make clear, there is only one amendment at
issue – the amendment that was recorded
before Relators filed this mandamus action. There are no other amendments and Cox and Ramsey have agreed not to record any additional amendments. Therefore, the Court should dismiss this mandamus action and deny Relators’ request for emergency relief.
ARGUMENT AND AUTHORITIES I. This Mandamus Is Moot Because There Is Only One Amendment And It Has Been Recorded. This mandamus is moot because the amendment has been recorded. Even a
cursory review of the transcript of the temporary injunction hearing and related pleadings shows that there was only one amendment at issue: the amendment to prohibit rentals for less than ninety days. 4 The injunction prohibited the recording of that and any other amendment by Ms. Cox and Ms. Ramsey. 5 After the temporary injunction was dissolved, it is undisputed that the amendment was recorded. 6
Furthermore, Ms. Cox and Ms. Ramsey have agreed not to record any
amendments to the Restrictive Covenants between now and the end of the
proceedings in the trial court. 7 There is no evidence to the contrary and Relators do 4 Tab E to Amended Petition for Mandamus, Transcript of TI Hearing. 5 Tab A to Amended Petition for Mandamus, Temporary Injunction. 6 Tab D to Amended Petition for Mandamus, Recorded Amendment. 7 Tab A to Response, Letter Agreement to Relators.
2 *6 not even try to claim that Ms. Cox and Ms. Ramsey may somehow try to file another amendment in the meantime. Therefore, this mandamus is moot because the request to reinstate the injunction cannot “unrecord” the amendment. F.D.I.C. v. Nueces
Co.,
886 S.W.2d 766, 767 (Tex. 1994); In re Uresti , 377 S.W.3d 696 (Tex. 2012).
In their Reply, Relators argue that a controversy exists because their “DJ claim requests a determination of the meaning of the restrictive covenants as concerns all amendments.” 8 Relators miss the point. The question is not whether Relators’ underlying DJ claim is moot, the question is whether the relief sought in Relators’ Petition for Writ of Mandamus is moot. The relief sought in Relators’ Petition for Mandamus is moot because it is undisputed that Ms. Cox and Ms. Ramsey recorded the amendment prior to Relators filing their Petition for Writ of Mandamus. II. Ms. Cox And Ms. Ramsey Correctly Stated The Status Of Relators’
Claims. In a related argument, Relators take Ms. Cox and Ms. Ramsey to task for
supposedly stating that Relators “have no live claim supporting their temporary injunction.” 9 However, Ms. Cox and Ms. Ramsey did not make such a statement.
Instead, Ms. Cox and Ms. Ramsey correctly stated the status of Relators’ claims in
the following manner: 10 8 Relators’ Reply at 6. 9 Relators’ Reply at 5. 10 Response to Mandamus at 9.
3 *7 The claims that served as the basis for the request for the temporary injunction were either (1) non-suited by Relators or (2) dismissed by the trial court in its summary judgment orders.
The claims that Relators non-suited included their claim for breach or attempted breach of restrictive covenant. III. Relators Failed To Respond To The Existence Of Two Changed
Circumstances. Ms. Cox and Ms. Ramsey identified two changed circumstances that support
the trial court’s dissolution of the temporary injunction. First, recent discovery showed that Relators had misled the trial court concerning due process and notice when they convinced the court to grant the temporary injunction. Specifically, Plaintiffs themselves sent a letter and flyer opposing the proposed change to all lot owners more than a month before the temporary injunction hearing. 11 The trial court explained its reversal by referencing Relators’ prior false statements: 12
“Probably because there were things that were said in that [temporary injunction] hearing that may not necessarily [] be true today.”
Relators failed to respond to this changed circumstance or somehow explain why they misled the trial court. 11 Tab F to Response, Woodall Depo. Excerpts at 64:1-7; 65:1-15; Tab G to Response, Plaintiffs’ Letter and Flyer. 12 Tab I to Response, Transcript of December 8, 2017 Hearing at 7:3-5 (emphasis added).
4 *8 Second, as Relators acknowledged, “the trial court reversed itself on the law.” 13 This change of circumstance resulted from the trial court interpreting the restrictive covenants as a matter of law in favor of Ms. Cox and Ms. Ramsey. However, Relators failed to respond to this changed circumstance. Therefore, the trial court did not abuse its discretion in dissolving the temporary injunction. IV. Relators’ Filing Of Their Sixth Amended Petition Is Not A Proper Basis
For Mandamus Relief. Relators spend an inordinate amount of time complaining that the dissolution
of the temporary injunction and subsequent recording of the amendment has changed the nature of the underlying lawsuit. 14 However, any harm to Relators is self- inflicted and not a proper basis for mandamus relief.
First, Relators – not Ms. Cox or Ms. Jackson – chose to file a Sixth Amended Petition with numerous new causes of action concerning the amendment. 15 After the parties passed the trial setting because they would not be reached, counsel for Ms. Cox and Ms. Jackson proposed several new trial dates in early 2018. Relators’ counsel initially responded that they were checking on availability for trial. Instead, Relators filed their Sixth Amended Petition that includes new claims of tortious interference with existing contracts, tortious interference with prospective relations, 13 Relators’ Emergency Motion for Relief at 2. 14 Relators’ Reply at 9-13. 15 Tab I to Relators’ Reply, Plaintiffs’ Sixth Amended Petition.
5 *9 conspiracy, suit to quiet title, and slander of title. Relators, not Ms. Cox or Ms. Jackson, chose to inject those issues into this case. Relators should not be allowed to now complain about the result of their own actions.
Second, contrary to Relators’ claim, the existing Restrictive Covenants – prior to any amendment – prohibited their rental of their property. Relators failed to inform the Court that the existing Restrictive Covenants prohibit renting or leasing “without the prior written consent of Developer.” 16 The trial court denied the parties’ motions for partial summary judgment concerning this prohibition and whether it has been waived. This prohibition against rental has been present in this case since Relators filed their lawsuit.
Third, Relators are in this position because they misled the trial court. As discussed previously, Relators told the trial court that there had been a lack of notice and due process. But, as Relators knew, they were aware of the amendment and had actively campaigned against it. In fact, Ms. Woodall had sent a letter and flyer to every lot owner (except perhaps Ms. Cox and Ms. Ramsey) opposing the amendment. After being caught misleading the trial court, Relators complaints that they have been out in a bad position should fall on deaf ears. 16 Tab J, Restrictive Covenants at Art. IV.5.
6 *10 V. Relators Attempt To Reargue The Motion For Partial Summary Is Not A Proper Ground For Mandamus. Relators also argue that Ms. Cox and Ms. Ramsey did not follow the alleged
requirement of a recommendation from the Architectural Control Authority. 17 However, this is merely an attempt by Relators to reargue the trial court’s order granting Defendants’ Motion For Partial Summary Judgment As To Claims And Counterclaims Concerning Section 4 Of Article I Of The Restrictive Covenants (“MPSJ”). 18
As explained in the MPSJ, there were two “separate” and “standalone” provisions that permitted changes to the Restrictive Covenants. Ms. Cox and Ms. Ramsey followed the provision in Section 4 of Article I that required the following: (1) the owners of a majority of lots must execute and record an instrument changing the provisions and (2) it “become[s] operative at the expiration of the particular period in which such instrument is executed and recorded, whether such particular period to be the aforesaid thirty-five (35) year period or any successive ten (10) year period thereafter.” 19 It does not require (1) notice and (2) a recommendation from the architectural control authority. 20 17 Relators’ Reply at 8-9. 18 Tab H, Order on Defendants’ Motions for Summary Judgment at 2; Tab D, Defendants’ Motion For Partial Summary Judgment As To Claims And Counterclaims Concerning Section 4 Of Article I Of The Restrictive Covenants (without exhibits). 19 Tab J, Restrictive Covenants at Art. I.4. 20 Id.
7 *11 The other provision, Article IX, contains a different voting requirement, does
not contain a ten-year period requirement, and contains both requirements of (1)
notice and (2) a recommendation from the architectural control authority. 21 The trial court rejected Relators request that it do violence to the Restrictive Covenants by copying and pasting requirements from one Article IX into Section 4 of Article I of the Restrictive Covenants. Relators made this request even though they admitted that the provision in Section 4 of Article I is a “separate” provision and Article IX is a “standalone” provision. Relators attempt to reargue the trial court’s partial summary judgment order should be rejected and, more importantly, is not a basis for mandamus relief.
Conclusion and Prayer WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request that the Court dismiss Relators’ Petition for Mandamus, deny Relators’ Emergency Motion for Relief, and grant them such other relief as the Court deems proper. 21 Id. at Article IX.
8 *12 Respectfully submitted,
/s/ Michael L. Navarre
Michael L. Navarre
State Bar No. 00792711
B EATTY B ANGLE S TRAMA , PC 400 West 15 th Street, Suite 1450 Austin, Texas 78701 (512) 879-5050 Telephone (512) 879-5040 Facsimile mnavarre@bbsfirm.com ATTORNEYS FOR REAL PARTIES IN INTEREST
RULE 52.3(j) CERTIFICATION I have reviewed the response to the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.
/s/ Michael L. Navarre Michael L. Navarre
9 *13 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was electronically served on counsel of record by electronic transmission on this 2 nd day of January, 2018: James Patrick Sutton – via jpatricksutton@jpatricksuttonlaw.com The Law Office of J. Patrick Sutton 1706 W. 10 th St. Austin, Texas 78701 Mr. David M. Gottfried – via david.gottfried@thegottfriedfirm.com The Gottfried Firm West Sixth Place 1505 West Sixth Street Austin, Texas 78703
/s/ Michael L. Navarre Michael L. Navarre
CERTIFICATE OF COMPLIANCE
Real Parties in Interest’s Surreply in Response to Amended Petition for Writ of Mandamus and Emergency Motion to Stay (1) Trial and (2) Trial Court Order Dissolving Injunction complies with the type-volume limitation of Tex. R. App. P. 9.4(i)(2)(B) because it contains 1,708 words, excluding the parts of the reply exempted by Tex. R. App. P. 9.4(i)(1). The undersigned relied on the word count of MS Word, the computer program used to prepare the brief.
/s/ Michael L. Navarre Michael L. Navarre
10
*14 APPENDIX TO SURREPLY IN RESPONSE TO AMENDED PETITION FOR WRIT OF MANDAMUS AND EMERGENCY MOTION TO STAY (1) TRIAL AND (2) TRIAL COURT ORDER DISSOLVING INJUNCTION Description Tab Restrictive Covenants ..................................................................................... J
*15 TAB J Restrictive Covenants *16 ~., . ·"· 56-7393 _I, '• • TH!l: STATE OP TEHS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TRAVIS § 'fhat Venture Development Company, a Partnership composed - of Can field Land Company, Inc., Cummings Land Company, Inc. and Gaylord Land Company, Inc., each such corporation he.ving itc prin~ipal . place or business in lfouston·i; Harris County, Texas, and Smith Land Company, Inc. , having its principal place of business in Aus tin, Travis County, '.l'exas, each a Te:.:as corporation, being all of - the Partners in Venture Development Company (hereinafte1' called the "Developer"), being the owner of all of that certain tract of land situated in Travis Coun~y, Te,:as, and known as Point -venture, Section Three-1 accor(ling to. the plat of said subdivision recorded .· in the jff1oe of t:ttCo~ty Clerk of Travis County, Texa$, on
~ro ·, 1972, after having been approveq as the gz:: d~y of provided by law, an being recorded in Volume ~8 Page 4'-3 of the Plat Records of Travis County, Texas, to whch plat and the record thereof reference is here made for a full and particular deecription of said land; and the Developer desiring to create and carry out a unlform plan and scheme for the improvement, develop ment and sale of property iri said Point Ve~.ture, . Section Three-1 (hl:!rein referred to as "the Sut>C!ivision"), uo~::1 hc,reby adopt, es'": tabl tsh, promulgate and impress the followi.n,:,; Reservations [1] Resti•ic tions and Covenants [2] which shall be and are hereby made applicable to the Subdivisions:
I. CENEP.AL PROVISIONS Applicability 1. Each Contract, Deed or D~ed. of Trust which may be here- after executed with respect. to any property in the Subdivision shall be deemed and held to have been executed, delivered and accepted subject to all of the provisions of thi:s instrument, including, without limitation. the Reservations, Restrictions and Covenants herein set forth, regardless. · of whether or not any of such provi sions are set forth in said .. Contract, Deed or- Deed of Trust, and whether or not referred to in any such instrument, Dedication
2. The streets and roads shown, on said recorded plats are dedicated to the use of the ·.public. The utility ea-sements shown the:reon are dedicated subject to the reservations hereinafter set forth. · Reservations
3.a. No interest in th¢ oil, gas:, or other minerals in, on or under the Property will be ¢onveyed by Developer; all interest in the !"a.me being expressly reserved by Developer.
b. The utility ease~6~t$ 'shown on the recorded plats are: ,;, ed1,;:ated with the reservation that such utilit~· easements are: for the ,ise and benefit of any p'utilic. utHity operating in Travis County, Texas, as well as for .th.e benefit ot: the Developer and . the property owners 1n the SubdivH{ion to allow for the construction, repair, maintenance and operaticin ot a system o:- s·ystems of electric light and_ power, telephone J,tnes, gas, watel', sanitary ~ewe:rs, storm
' MAR o 7 -2017
.
·1291 1452
EXHIBIT 1, page 1
*17 TAB J - page 1 ----·-·- - - --------------- . ···-- St-7394 sewers and any other utility or service which the Developer may find necessary or proper.
c. The t-1 tle conveyed to any property in the Subdi visicn shall not be held or conot:f'Ueci to incluc.i~ i,i1<::: . LHlt' Lv Lho;; . wiii,i::i', gas, electricity, telephone, storm sewer or sanitary ie~e~ lin~s, poles, pipes, conduits or other appu:r·t ~nances or facilities con structed by the Developer or public utility companies 1,1pon,- under, along, across or through such public utility easements; and the . right (but no obligation) _to construct, maintain, repair 11nd ··operate such systems, utilities, appurtenances and facilities is reserved to the Developer, its success~rs and assigns. ·
d. The r,ight to sell or lease such lines, ut1Ht1es·, appur tenances or 0;,11er facilities to any municipality, governmental agency, public service corporation or other party 1s hereby ex- pressly reserved to the Developer. ·
e. The Developer reserves the right to make minor changes in unc. miner addition& to such utility easements for the purpose . of more e:fficiently·serving the Subdivision or any property therein .
f. Neither the Developer, nor its successors or assigns, using said utility easements shall be liable for any damage done by any 01· .such parties or any of their agent::. oii· ~niyluy.,,1::s to sh:t-ut, be~y, trees, flowers or other property of the land owner situated on the land covered uy said utility easements .
g. The Developer reserves the right to construct one or more esplanades in the ar>eas where esplan~des are shown on .the recorded plat. The Developer further reserves the right to improve, · land scape, alter, modify and eliminate any cne or more of :me~ cspla;.. nades (or reinstall one or more of such esplanades) at any time,· and , .-:·om time to time, hereafter.
h. The Developer :r~serves the right at any time, and from time to time, hereafter to promulgate and impose restrictions (as .W'ell as va:ry and amend any · such restrictions) as to all or any por ;. ti-on of the unplatted. reserve or unrestricted areas of . the Subdi- .. v:i,sion identified on the aforesaid plat. Any s·uch action by the · Developer shall not, in order to . be fully binding; require the . , j oinder of any other person• whether such person be an owner of · , property in the SUbdiv1sion, cL lienhvlder-, a mortgagee, a Deed of
_Trust beneficiary or any otner person. ·· Duration
4. The provisions het'.eof~ including the f(eservations, Re~ . strictions and Covenant~ herein set forth, shall run with the land ·. and shall be binding upon the Developer, 1 ts euccessors and assigr_s , · and all persons or parties cla1m;tng under itor· them for a period
of 'thirty-five (35) years from the date hereof, ;1t which time all ·of . such provisions shall be automatically extende<i for succe _ssive : ·pfriods of ten (10) years each, unless prior to t}:le expiration of .· any such period of thirty-'fi ve · ( 35) years 01· te,n ( 10) yea,rs, the _.. th.en owners of a majority ·or lots in the Subdiv_1~1on sha_ll have · ·execut'?d and recorded . an instrument · changing the provisions hereof, ·>in whole or in part, the provisions of said instr:ument to become · ~p~1·ative at the expiration of the particular period in which such
. 'ir.strUJ:Jent is executed and reco:rd,ed > whether s-qch. particular i:,eriod i te- the aforesaid thirty-fi\i;e 05) year period cir any successive . . ten (l O) year period thereafte~ ~ · .
-2- -1:!!H 1.1!i1
EXHIBIT 1, page 2
*18 TAB J - page 2 56-7395 Enforcement In th~ event or any violation or attempted violation of 5, 1:my or the p1•uvlsiona hereof, including any or tf?e Reservations, ne .. t1•ictlom1 or Covenants herein contained, enforcement Bhall be authorized by any proce·edings at law or in equity against any person or persons violating or att:empti!'lg to violate any ot . such provisions; ·in<iltidiijg ;p'r~ceediligs<to re11tra1n or prevent such .vio-. lat.toµ or 4~~~~~;:,~ tH>::t'iH,9~ ~;v,; ·;_~JµP.!lt,,j,,Qg, ,"J?~ther pr9hibitive ·
, in nature or ~~~~-~!"Y _;!J,··;".'?~,:,~d!ng compliance with such ·provisions; an~ it shal_l llf)f.P~ \' P.!~~f~qµi-~H~- t _c., the u~pUng ot any such in junction to show 11:l8.4,~:qµa.cy. _or leg~l remedy or irreparable harm. Likewise, any p~r~oij entttled 'to enforce the provisions hereor may recover such <i~~-~$,:s as such person has sustained ,by reason o-r. the ... violation ot 1:1u~_ti :_,P.1:"PVt,sio,n~. It 1:1hall be lawful for the Devel oper or for any p!;!_rson or persons -owning property in the Subdivision (or in any other Section -of Point Venture) to prosecute. any proceed ings at law or in equity against tne person or persons violating or - attempting to violate any of such·provisions. Part:1.al Invalidity
6. In the event that any portion of the prov1s1on~ herepf shall become or oe_ held invalid, whether-by reason of -abandonment, waiver, estoppel, judicial decision or otherw1:rn, such. par:tial invalidity shall not affect.1 alter or impa1r any other.provision hereof which was not thereby held invalid; and such other prov1- . sions, including Restrictions, Reservations and Covenants shall remain in full force and :eftect, binding in accordance with their terms. · Effect ~f Violations on Mortgages
7. No violation ot: the- provisions herein contained ., or any -- portion thereof:, shall affect the lien of any Mortgage.or Deed of Tr>ust presently or hereafter placed ot' record or otherwise affect the rights of the Mortgagee under any such Mortgage, holder of any such lien or bene:ficj,ary of any such Deed of Trtust; and any ._ · -_ such Mortgage, lien or Deed of Trust may, nevertheless, be enforced in accordance with its tef-ms, sµbject, nevertheless, . to the proy-1- sions herein contained· 1nclud1ng said Reservations, Restrictions · -. and Covena,1ts •
II.
,·,· , , . I. ARCIUTEl.!T{!RAL -.CONTROL Basic Rule 1. No building or-: _othe"r- 1-mprovement of any character shall be erected or placed, or- ·th_e e;rection or placing thereof · c011111enced, or changes made in the deaign .th~reof or any addition .made thereto or exterior aiteration made "ther.e1n after orig1nal ·constru.ct1on» - on any property 1n the-Sql)db1s1on until the obtaining of -the neces-: sary approval (as hereiria._:rter provided) or tbe constructio:: plans - and specitications and a -plat s~owing the location or suet. bu.11.;llng · or other 1.mpro7e5ii:nts. ' 'Approval shall be granted or withheld based on aatters ot coapliance;.~ith·· tt:te provisions or th1.a instrwaent, quality or uterial1f, h~llY'- ."t)t e·,:ternal design and enat1ng ~ proposed atructurea and - lo.caUo:i ·with reapect to topography and finished grade elevation.> · · ·
*19 EXHIBIT 1, page 3 TAB J - page 3 Sc-7.396
Architectural
Control Authority
~.a. T~e authority to ~rant or withhold arc hitectural control app,roval as referred to above. ls vested 1n the Developer; ex:::ei:,t, however, thit such authority of the Developer shalr cease and ter~ minate upon the election .of the Point Venture Arch1tect.u:ral Control Committee,, in which: event such authority shall be vested in and · eoc.erciseci by the Point Venture A1"chitectural Control· Committee (as . . provided 1n b·. · below), hereinafter r•eferrecl · to; except as t o p lans . and. specifica:tions and. plats theretofore . sul)mi tted to the . Developer which. shall . continue to exercise such authoI' ity uv.er.all such plan s , specifications . and plats. ·
b . . At such. time as 75J of the lots. 1n the Subd1 vision and ir, all other Sect:l.on·s of Point Venture (as her.etofore or h-c:reafter~ platted, from time to time) shall have been sold by the Developer, then the Dev.eloper shall cau.se a Statement of such circurr.stances to be placed of record in the -Deed Records. of Travis , County, Texas. Thereupon, the lot owners in Point Venture may by vote, as herein
l after provided, elect a committee of five {5) members to be known as the Point Venture Archltectural Control Committee (herein re
l ferred to a.s tne "Committee [11] :-ach member of the Committee must x.· ) . \ be an owner of property in some Section of Point Venture. Each lot f owner shall be entitled to one (1) vcte fo~ each whole lot or build ing .site owned by that owner. In the case of any building s~te' · i composed of more thll.n one (1) whole lot, such building site owner shall be ent.itled to one (1) vote for each ,.,hole lot contained within such building site .•
The Dev.eloper shall be obligated to arrange for the hold ing of such election within sixty (60) days following the filing of the aforesaid Statement by the Developer 1n the Deed Records of Travis County, Texas, ar,d si ve notice of the time and place of such election (which shall be in Travis County, Te:x:as) not less than five {5) days prior to the holding thereof. Nothing herein shall be 1n t¢~preted to require that the Developer actually ,i'ile any ·such St~tement so long as 1 t has not subdivided and sold the entire_ty of the property, nor to affect the · ti:me at which the Developer might take _such action if, in fact, the Developer does take such action.
The results of each such election shall promptly . be detei-mined on the basis of the majority of those . o:i,,ners then voting 1n ::such ele·ct-ion. ·
After the first· such election shall have been held, there after the Committee shali be obligated to arrange .. i'or elections ( in the Diann.er and after noti<.:e as set forth above) for the removal apd/or repl,acement of Committee members when so :r'cquested in writing by', thirty (30) or more lot owners in the Subdivision. Members of tne ' committee may, at any time, be relieved of .their position and sui;)stitute members therefor designated by vote as. set forth . above •
. Upon the death, resignation, refusal or inability .of any meml).~r of th.e Committee to . . servej .the remainir,g·members of. the Com m1tt·ee · shall fill the vacancy by. appointment, pending an election as> h_ereinabove provided for. . .. Effect of Ir.action :,, c 3. , ·A:ppi;•oval or- disa.pproval as to archit.::ctural control matti=rs the preceding . .provisions shali tie -- 1-r: writing.
af! ':~.et forth h In the, ·~·,ent ~hat the author.Hy exercising the pre"rogative of appr-cval
7 ·2017
-11-
....... ,_ .l·hA)
EXHIBIT 1, page 4
*20 TAB J - page 4 . ·········-····-···- ·- -·- ·--··----·-··- - - - - - - - - - - - - - - - - - Sb-7397 or disapproval (~hether the. Developer or the Committee) fails to approve or disapprove in writing any plans and. spec1f1cat1Qns and
,,_.: , plat submitted t~ it in thirty (30} days following suuh submisi1on, s.uch plans and spec:1 ricat:!ons and plat shall be deemed. .approved . and
I
the construction or any such building and other · impro.vements may be commenced and proce.eded . wi:th 1n compliance with all such plans and specifications and plat and all of the other term.s ,an<;t pr-ovi- sions hereof. · Effect of Approval
4. The granting of the aforesaid approval shall constitute only an expression of opinion, whether by the Developer or.the Committee, that the te:rms and provisions hereof shull be complied . with if the building and/or other improvements are erected in · •· accorda,~ce with said plans and specifications and.plat; and such approval shall not ·constitute any nature of waiver or· estoppel either as to the -persons expressing such approvals or any other person in
t the event that such buildlhg and/or improvements are not const~uct~d · f .'..n accordance w,tth such plans and specifications and plat. . Further, no person exerc!sing any preroga.tive of approval or dlsapproval · j shall incur any liability by reason of the good faith exercise there- of. Exercise of any such prerogative by one (l) or more members J of the Ce;mmittee in their ~apacit:r nr; :11::-:'h ~h~ll net con:3titut::·· .. action •
.. ·._'. . ;:-.t by the Developer after the ' eleotion of such Committee memebers,not~ _.,.. ... ·. withstand:i,.ng that any such Committee member may be a Dlrector of the Developer.
III.
DESIGNATION OF TYPES OF LOTS -All lots in the Subdivision as shown on the rE:corded plat 1. as I-ots 463 thru 553 , inclusive, are hereby designated as "View Lots".
2. · All lots in the Subdivision as shown on the .recorded plat as Lots 554 thru 570, inclusive, are hereby designated as . "Cluster Cottage Lots" . .
3. The "General Restrictions" set forth 1n IV. below shall be api;,Ucable .to all types of lots in the Subdivision here:i,naboye enumerated and designated •.. The "Special Hestricti.ons" set fortn in V. below shall, in addition to the General Restrictions, apply to the particular . type of lots in the Subdivision so-indicated.
IV . GENERAL RESTR.LCTIONS 1. None of the lots · or the iinproveme,1ts thereon shall be used for anything other than slngle:-ramily, private res-1dential p;i.rposes. Af'ter the construction of such residences• it :l;s under stood that - there may also ,be constructed a garage, . servants' quarters and/or guest I s quarters, , so long as the same are connect.ed · (by . .. , co,c:red breezeway or other·w1se).wi.th, and used in conjunction with· such single-fainily. private reside.nee. For purposes of ~h:ts instru ment, the word "lot" shall not be deemed to include ar,.y portion of the following areas shown on the r .ecorded plat: tbe golf course, any· esplanade, the · club . a!'.ea, and any unrestricted or rese1".re. areas shown ~n the plat.
2. · The living area of tiie·:~,a:in residential .structurt'! (ex- clusive or porc~e5, whether open . or screened, garage or other car ps.rki~ facility, tel'races=, . ttriveway3 and servar.ts ! quarters) shaL. be r,ut less thar, the !'ollow:!.ng respective ~u.nts f-:,r each of the designated pa:.'t:!cular typ,iog .er lots:
-1291
EXHIBIT 1, page 5
*21 TAB J - page 5
5E-7398
View i:.ots: l, 200 sq.. ft. ror a one-story building; 1,500 sci. rt. 1".or a two-etory building; and Cluster Cottage Lot!!: 800 :,q, rt. 3. a. .No building shall be located on any lot nearer to the . rront street line.- or nearer to the :street side line than the mini-. mum building set-back lines shown ori the aforeaaj,d pla:t (-designate:d · thereon as "Bldg. line"). Subject .to the provision;i _of Paz•agraph 4., no bt.11lding shall be located nearer than sev!?n a,nd :one-half (7-1/2) feet to an interior side lo~ line. For the_ purpose oftb1s covenant, eaves, steps and unroofed .. terraces shall riot be considered as part of a bu!lding_. provided, however, that tl')is shall not pe: construed to permit any portion of the construction on a lot to encroach upon another lot. Variations from these requirements as to building location may be granted :by the Architectural. Contro.l Authority. if the above requi~ements are not feasible, considering the terrain of the lot. ·
b. No structure shall be placed on any lot which (by reason of high walls or fence::1, excessive height, specially peaked roof' design, etc.) unreasonably will ob~cure the view o.f' Lake Travis from a dwelling located or reasonably to be located upon an abut~ing lot (and, for this purpose "abutting lot" includes a lot sepa~ted only by a street) • . The decision of the Architectural Control Authority in this matter shall be final.
4.a. Any owner o:t one o:r more adjoining lots (or portions, thereof) ~:r ccn::io11date .such lots. v:l' po:i:tlum, lnto one buildlng site, with . the privilege of' placing or constructing improvements on such resulting s!te, in which case side set-back lines shall be measured fron; the resulting side property lines rather than f'rom the lot lines as indicated on the recorded plat. Any such composite building site must-have a frontage at the build~ng set- back line of not less than the min1mum frontage of lots in. the sam~ block. Any such composite building site (or building site result~ . ing from the remainder of one or more lots having been consolidated into a composite building site) must be of not less than nine thousand. (9,000) square l'eet in area (Cluster Cottage Lots ,excepted - See · Special Restrictions V.) and this shall supersede any con.trary pro vision in the Subdivision p:l,at. Any modification of a building site. (changing such building dte from either a single lot building site or .from a multiple whole lot building site), w:hether as _to size or configuration, mat be made only with the p;r,ior written ap proval of the Developer until the CommHtee is selected and there after, only. with the prior written approval of th!? C:ornmittee _. , Upon any such required approval- having. been obtained, such composite · building site shall thereupon-be :regarded as a "lot" for all. pur. poses hereunder, however, ,tpat_· for ·purposes or voting for the Com-. m1 ttee ( as provided under Paragraph -II. 2. b. above), an 9wner shall be entitled to one (l) vote: for each whole lot within such owner's buildi.~g site. · · ·
b. Cl_uster Co.ttage I;ots may have buildings nearer than ~even and one-half. (7-l/2) f'eet . to an _interior side lot_ line, subject. ;;o prior· writ.ten approval of the Developer until the Committee is selected and therea!'ter, on,ly _with' :~he prior Written approval Of the CoillI!littee •. (See Special Re~tr1ct1ors V) · .. ..
5. All lots iri the S.ubdivh16n shall be used only for single fattd.ly residential purposes; · No noxious or offensive activity- of any sort shall be permitted, _nor shall anything be done . on any lot which may be or become an annoy_,µ)ce ·_or nuisance to _ the neighborhood. No lot in the Subt.1 vision shall . be used ro~· any commercial. busi ness or professional purpose _· nor for church purposes. Tile renting or leasing or any improvements :ther·eon or portion thereof~ without thP prior written consent o.f Developer, is prohibited. No -.hoµse tra.aer. ca.per tr&J;ler, CIJ.IPer vehicle or lll<>tor vehicle . (i;,r pcr tion thereof) shall be 11..-ed _ 1rt on any lot.
-6- *22 ·1291 1457
EXHIBIT 1, page 6
TAB J - page 6 Sb-7399 6. No structure of a temporary ~haracter, trailer, ba~ement, tent, shack, garage, barn o~ other outbuilding shall be used on
. I-
any lot at arry time as a residence, except, however-, that a ! garage may contain !:!.ving quarters for bona fide -servants anct I except also . that a . field ofJice, as hereinafter provided may .be . established. . . . Until the Developer has · sold all other iots l~Point Veni:ure (and during the progress of construction of residences in ~he Subdivision), a temporary f:1,eld office for sales and . related purposes may. be located and maintained by the Developer (and/or its sales agents). The location of such field office. may be changed, from · time to t _ime, as lots are sold. · The Developer's right to maintain such f:l.eld of:fica (or permit .such field office to be maintained) sha:!.l cease when all lots in · Poiht Venture. except the lot upon which :;uch .field office is. located, have· .been sold.
7, No animals, livestock or poultry of any kind shall be raised, bred or kept on any lot, except that dogs, cats or other common household pets may be kept as household :pets pr.9- vided they are not kept, bred or maintained for commercial pur poses and provided they do not constitute a nuisance and do not• in the s9le judgment cf the. Developer constitute a danger or .. potential pr actual disruption of other lot owners, their families or guests.
8. Where a wall, fence, planter or hedge is not spec1.fically prQhibited under the Special Restrictio!:'ls set ' forth in v. below, the . following (as to any permitted wall, fence, planter or-hedge) shall apply:. N,o wall, fence, planter or hedge in excess er two ( 2) feet higp shali be erected or maintained nearer to the front lot line than the . front bu:l.lding set-back line, nor on corner lots . nearer to th~ side lot line than the building set-back line pa1•allel
· · to ·,t)'ie s1o.e street. No r•ear .fence, wall or hedge and no side . _fel1\!e, wall or hedge iocate_d between the side building line and . th~ .1nt~r1or lot line (or located on the interior _·1ot line) shall , , be_ m_ore .than . six· (6) . feet high: · (Cluster Cottage Lots excepted - .· see. Special Restrictions V) . . ..
No :object or thing which obstructs sight lines at eleva · "ti:ons.between two (2) and six (6} feet above the roadways -wit.Mn ·. '.t;fie :triangular area formed by intersecting stre~t .property lines
atj,~l, ,a line connecting them at 'points twenty-five :(25) ·feet :rrom the ·J.ntersectiqn of the street . lines ( or extensions thereof) shall
. : be/ placed, planted or permitted to' remain on corner lots. · .. •. ,.. . ;-; .. :· .. , , . · 9. The drying of clothes in public view 1s . prohibited, and th\'! : owners or occupants 6r·any lots at the intersection of streets :o.r adjacent to parks, playgrounds or other facilities where tlie . re.a)? Y!,ird Ol' portion of the .· lot is visible to the public, shall c:onstruct and maintain a drying yard or other suitable enclosure · t~. screen drying clothes fr'9.II' public view.
10. All lots sl1all be k,ept at all times in a sanitary, health ful and attractive oonditio_n, .· and the owner or occupants of all lots :shall keep ' all weeds and grass thereon cut and s·hall · in no event us·e any lot for storage of material or equipment· except fo:r normal residential requirements Ol' incident to construction of improve llli:1nts thereon a.,; herein perrr,itted, or p~rrnit the accumulation of . garbage, trash or rubbish of any kind thereon, Any inciner;-;tor or., ·other equipment for the ~tor~e .or disposal of such material
.. -.. ~_h,jl.i be kept in a clean, S'q.h~:tary, and sightly condition. : During , the Construction. of improve'm·ents :no. trash Shall .. be: burned Ori at:y
*23 -1~1
EXHIBIT 1, page 7
TAB J - page 7
5&-7400
lot except in a safe rnanner, and, unless so burned, sh.111 be removed by the lot owner. Boats, trailers and other park.:;d vehicles are to be stored in a location n6- c·1oser to the street than the fl"ont l:!ullding set-back line, or in the case 01· a corner lot the side building line facing the street.
In the event of' ·default on the part of the owner or occupant· of any lot in observing the above requirements or an~ of them, such default continuing after ten (10) days written notice thereof, the DP.veloper (until the Committee is selected, and thereafter, the Committee) may, . without liability to the owner or occupant in trespa11.s or otherwise, enter upon (or authorize one or more othe~s to enter upon) said lot, and cuase to be cut> such weeds and grass, and remove or cause to be removed such gwbage, trash and rubb1ah or do any other thing necessary to secure compliance with · these restrictions• so as t ·o place said lot in a neat, attractlve, healthful and sanitary zon dition, and may charge the:_ owner or occupant of such lot for the reasonable cost of such work and associated materials. The owner or occupant, .as the case ma.y be, agrees by purchase or occu,pation of the property·to pay such statement immediately upon recelpt thereof; howeveL', the payment of such charge is not secured by any nature of lie~ on the property.
11. Before initial r;esidenc!al occupancy, no sign, advertise ment, billboard or advertising structure of any kind may be erected or maintained on any lot in the Subdivision without the p:-ior approval · of the Developer; and any ·such approval which is granted by the · De-'. veloper may be withdrawn at any time by the Developer, tn which event, the party granted such permission shall, within the period designated by the Developer (which iri no event shall be less than five {5) days),· th~N::upon ~ [0] ,;,m,)v.e same. Arter 1r.it1al residential occupancy of improvements on any particular lot in the Subdivision-; no sign, advertisement, billboard or advertising structure of any kind other than a normal f'pr~sale sign approved by the Developer as to design, not exceeditrg· two feet by three f'eet {2' x 3') erected on a post in the ground, a.pd applicable to such lot -alone, may be erected or maintained on such lot.
The Developer until tbe .Committee is selected, and there-. a.rter the Committee, shall .have the .right to remove and dispose of any Sil.ch prohibited sig~, advertisement, billboard, or adver.tising structure which is placed c;m any lot, and in so doing shall not be subject to any liability fort;respa:ss or other tort· in connection therewith or arising from ·such removal nor -in anyway be liable for.any accounting or other ·claim · by reason of the "'di:sposition thereof. · · · ·
. 12. -The digging of dirt or the removal of any dirt from any 1o·t is expressly prohibited. ·except ·_as necessary in conjunction with the -landscaping of or i construction on such _lot.
13. No lot or other portion . of Point Venture shall be used or pe:'t'mi tted for hunting or f61". . the · discharge or any pistol, rifle, shotgun, ::>r any other firea.i:'rn; or any bow and arrow .:ir any other deyice capal.Jle of killing or· inJurihg.
·, 14. No outside toilete ~111 -be permitted, and no installation of any type of device for i:Usposai ,.of sewage shall be allowed which would re.s-ult 1n ra-w or untreate.d or.unsanitary sewage being carried ln;t;o a.!1y water body . No . sep 1;,1c tank or ot!'.cr mean:; of :;~wage dis posal may b~ installed unl~s-s ~ api:,r·o:ved by the pr.op-er government3l · authorities having jurisdictio1'( ~itn respect thereto and tl,e ~veloper.
*24 -1~'91 EXHIBIT 1, page 8 TAB J - page 8 Sb-7401 15, No oil drilling, oil development operatlons, olJ. refin+ng, or mining operations of any kind shall be permitted upon any lot, nor .;;hall any wells, tanks, tunnels, mineral excavations or ic.haf"!:R be per.mi tted upon any lot. No derrick or other structure designed for use in boring for . oil er natural gas, shall be erected-, main- . . tained or permitted on any building site. . At no time shall the dri111·ng, usage or operation of' any wab:,r well be pern;itted on any lot. ·
16. Drainage· .structures under private dz\iveways shal.1 al\'.f_ays have a net dra1nag.e opening ~rea or sui'fi :ient size to permit the.· free now of. water without b:ackwater. ·
/· . 17. All property owne:r:s, members of their families and their guests, shall have the right of ingress and egress to the. lake • through the park areas as shown on the Point Venture Section Two Subdivision plat. Such right shall extend to and include. the owners of lots within Section Three~l of the Point Venture Subdivision as well as subsequent sections developed by the Developer from lands contiguo.:s to .or 1n· the v.lc1n1ty of the said Point Venture Subdi-. vision. All parks and impro.vements shall be avai16ble for . USE,! by such property owners, their families and guests, at their own risk. When 75 J of the lots in all sections of Point Venture Subdivision hr:tve bei=n sold, or sooner at the election of the Developer, Devel oper may tr~nsfer title to all parks and other community areas to, the Venture Yacht and Country Club or other civic organizaticn active in the area, a1·ter which the operation uf iil.nd maint:anancn ~nd payment of taxe~ on such parks and other comm~nity areas shall ;be the respons1b11.i ty of such transf'.eree.
18. The Developers or any person, firm or corporation ope~ating the golf course in the Subdivision shall not be held liable for any damages t .o any lot owner, their guests,. or their ·heirs, acuninistra ·tors or assigns resulting from operation of said golr course.
· · 19. ·· The :property incluqed in the Subdivision is si;.bject to . all easements or l'ecord, and- especiaJ.ly to include thos.e certain easements in favor of Lower Colorado R:tver Authority of· record in Vol. 587, page 440,Vol. 601, page 536, Vol. 676, ·page 428, and Yoli.. 678,page 12.7 of the Travis County Deed Record.s, to which ease men'!;s: and their record thereof :rei'erence · is hereby made for all pµr~oses ~ . The property is also subj·ect to that. ce~ta:l,~ 011 an_d Gas Lease, dated January 6 • i967, · as recorded in VolUJ!!e 32.45:, page. 1J2·?, Deed . Re 9ords of Travis County, Texas.
·:. 20. ·. Where underground utility services · shall. be available for ifaid ··1ots; no ·above surface utility wires will be · insta:lled outside qf an~· structure. Underground utili. ty service lines. shal,l extend t~r.ough and under said lots -in order to serve ariy .st'r~ctµre thereon, a~d . the aiea above said underground lines and eJ,1:tend:fng · 2,-1/2 feet to .:each sid:e of said underg:r'ioum;l line shall be . sul)jeet 1:o excava t,io'l); refilling and ingress and egress for the installation, 1n-· spection, repair, replacing and removing of said underground faci- 11~i¢s by .such utility company;. and owners of said .· lots shall . a,scertain :the locatlcn o!' said linel;; and keep tr.e a:-,::a over tne route of Said :Ines free of excavat1.on and clear of structures;· trees or· other obstructions.
. . .
V.
SPECIAL RES~RICTIONS In add1 tior, to th,/ Ge-nerai Restrictions set fc,:i;-th in IV. 1 . atiov:e' t:he following re;;:1tribtions shall appl.y: *25 ·1291 EXHIBIT 1, page 9 TAB J - page 9 Sc-1402
a. Ne pier, dock, or other structure shall be permitted ' w!th out prior approval er t he Architectural Control Authority as set forth in II. above.
b. Any garage muHt be attached to the ~ain residence and must bi:: not nearer to the lake sl!ore than the main residence itself. 2. In addition to the General Restrictions set forth in IV.abOve, the fellowing rP.strictions shaH 11pply to Cluster Cottage Lots: a. No wall, fence; planter hedge (or other 1mprove:nents or ob:.., ject serving a _ like or :,imilar purpose) shall be const-ructed or' permitted without t he written consent of the Developer. -
b. Each person a~qu1ring a Cluster Cottage lot mu3_t be a member of Point Venture, Inc. -, and must relllain e. member in good. standing -as long as .they own property · 1n the Cluster Cot1;age Lot section.
c. Since zero lot line a,nd/or common wall concepts are . anti- . cipated, the ·Developer, untj,1 the Coir)mittee is se.iected and thereafter the Committee, .shall be the sole and prevailing authority re~arding
- wall, fence and building set-ba:ck requil"ements. Such authority shall at all times . be .con:s1stai1t and in the best interest for all parties concerned in ·the Cluster Cottage Area. - ·
VI.
VENTURE jACHT AND COUNTRY CLUB MEMBERSHIP E~ch person acquiring property in the Subdivision (whether
acquiring same initially or upon resale) must first apply c.nd be accepted for membership in the Venture Yacht and Country ·club; and must remain a membe.r ih good standing as long as t}:ley own property' 1n tne Subdi visiun. · · · ·
VII.
VENTURE YACHT AND COUNTRY CLUB FUND 1. Each lot _ (or residential · building site} in the Subdivision shall be and is hereby made subject to an annual Venture' Yac~t and Country Club . charge (hereafter - referred to as the "Club Fund"), except as otherwise hereinafter provided. ·
2. The Venture Ya-cht and - Country Club Fund referred to .shail be u:,ed to create a _fund to be ' known as the "Club Fund"; and ea;h such "Club Fund" charge shall ("except as otherwis e hereinafter pro vided) be paid by the owner of each lot (or residential building sJ.te) annually, in ·advance, on· or before September 1st of each year, beginning 197 2. · -· · ' · -
3, The exact .amount of each Club Fund charge will be deter~ mined by the Developer during -the · nionth preceding the . due date of said Club Fund. All other matters relating to the. assessment, collection, expenditure and administration of t]Je Club Ful'id shall be determined by the Develope~.
ll.. The , Club Fund charge_ shalJ not, without the consent of the Developer, apply to lots 6wned',_by · the Developer or owned by any person, firm, association· or corporation engaged pri~ar1ly i _n the building and construction '. bus1n~ss which has acquired title to any such lots for the -sole purpo1;1e .o'f constructing itnprovements thereon and thereafter selling slJ{!b).ots; however, upon: any such sale of' such l .ots _ by .such person, -_firm, association· or• corporation to a purchaser whose primary pu,:>poi:ie is to occupy and/or rent· aP.d/or lease such lc,t (and improveme.rits thereon, if any} ·to some uther occupant, then the Club Fung charge shall thereupon be appli cable to such lot ; and the De_vel<iper hereby consents to the appli cability of _the Club Fund charge to ·each such lot under the circwn stance5 herein stated. Any t:ranster' ' of title to a,ny lot. by any · such perso·n, firm, association of corporation engaged' p~imarily in the bu1ld1ng and construction -bu~fi1ess to a tranfe:?¥.e engaged pr1118.r1ly in the building and . c'Onstruction buainess shall not result ir, the applicability cf thE< ~lut: · F)lnd ' charge to s,fch lot owned _by *26 the tra."lsferee or any succeeding transferee pr1:aa.r1ly engaged in
1, D;;na Oe8eauvoir, County Cieri(, Travis County, Te, as, do hereby certify Iha! this Is a true and ~~iy::::~:::ea~ fo , Q 7 ·2017
cermet copy as same appears of record in my office.
-10 .• ·12'J1 1461 LES \;~~ By Deputy: EXHIBIT 1, page 10 TAB J - page 10
Sli-1403
' .
the building and construction business without th~ con~E'nt of '.the
Deve l oper. The Developer ·reserves the right. at all times, in
· his own judgment and discretion, to exempt any lot in the Subcii- v1sion from the Club Fund charge, and exercise of such jU:dgment . and discretion -when made in good faith shall be l:?ind1ng and · conclu;_ sive on all persons and interests. The Develcper ·s~all hav:e ·the, , further right at any .time, , and from . time to time, to adjust, a.1ter or .waive said Club Fund charge from year to year a:s it deem$ proper; and Developer shall have the right at any time to ·_ diseontinue c,r abandon such Club Fund Charge, ~1 thqut incurring liabHi.ty to any person whom.soever by filing a written instrument 1ri the offlce · or the Qounty ·clerk or Travis County, Texas, declat'ing such disccn- _ tinuance or abandonment. · ·
5. The Club Fund charges collected shall , be .paid into the Venture Yacht and ·Country Club Fund · to be held and used for the· benefit, directly or indirectly, of the Subdivision; and suah Club Fund may be expended by the Developer f'or any purposes which, in the Judgm~nt or. the Developer will t~nd to maintain the property values in the Subdivision, including by way of example but _not by way or limitation: providing for the enforcement o·r- the provis;l,ons of 'thisinatrument~ . including the aforesaid Reservations, Restric tions and Covenants; for the waintenance, operation, repair, bene- 1'1t and welfare of any recreational and/or utility facilities which might herea.fter be established in Point Venture; and gener!ill.v for doing any other thing necessary or desirable in . the opinion of t'he .Develcper ·to maintain or- imp1-;uve Lh~ property ot tbe . Sut><i 1v1s1on. · The: use of the Club Fund for any of these purposes is permissive and not mandatory, and the decision of the Developer with .respect thereto shall be final, so long as made 1n good faith. In o~der to secure the payment of the Club_ Fund charge
6. hereby l~vied, a vendo1• [1] s lien shall be and is hereby reserved in the Deed from the Developer to the purchaser of each lot or por tion thereof, which lien shall be enrorceable through appropriate jud:l..::ial proceedings by the Developer. Said lieri_ s,hall be qeemed _: ~b:ordinate to the lien or .'J_iens of any bona fide .. lender which . h_e~eafter lends nioney for the purchase of any p,;-operty in the Sub ·'division, and/or for construction (including improvement) and/or ; permanent financing of improvements on any . such ·prbp'erty . . . · . _': 7. These provisions as ·.to the Club Fund .charge and the Ven-
tut'~ Yacht and Country Club Fund shall cont:l.nµe :t.n . et'fect unless changed in the manner and at the time or ti.mes . her.~ina,bove provided . for, : effect.;ing changes in the r.estricti ve co.venant_s hereinabove set ·· 'foi>!;h . ·
VIll. TRANSFER · OF FUNCTIONS OF THE DEVELOPll:R -· . . . The Devel.aper may at· ahy time hereaf:ter·· cause one or ·rnf"ll' P. non~profit corporations to be organized under ' the. _:Laws of the Sta_te o:!' ;Texas for the purpose of exercising a.11_ or any ._of the d,uties an4
· .pi·erogatives .of .the Developer'. her~under (1nclud1ng·the matte.rs r:e- ._ lating, to "Club Fur'~d [11] charges _aqd the Venture Yacht" and Country . . Glub Fund). Any such delegati_on of l:lU.tho1•1tf a.n_d duties shall =,erve to· automatically release the Developer from further' liability with respect thereto and ve s t such duties and preroga:~1yes in such non-
. pr.cf it corporations. Any suet( 9elegations shall .te · evidenced by . an' ':instrument amending this ins,trument, placed .o:t rE?_co.rd 1n. the Deed · R.ecqrds cf Travis Cou;nty, T~x;a,~., al'\d joined by: Jh_e· '.·Developer and . ·· • u·,e . aroresafo non-profit corporations but not, . fio~ever ·, requiring · . the joinder of _ any other persQri : in order to l'e f'u,l.ly binding, whether·
*27 1_ Dana DeBeauvoit, County Clerll, Tra~is County. Te •as. do hereby certify that this is a true ,md correct copy as same appears of record in my office . Witne_ss my hand and sea _offi
-11- (!;~~ Dana DeBe voir R O 7 ·2017 Hy Deputy. .A'XJ.l~~~LES -t!9l 1-tG2 \ ~ EXHIBIT 1, page 11 TAB J - page 11 ' 56-1404 such other person be an owner· of property in the Subd.ivlsion, a l:1enholder, mortgagee Deed of. Trust beneficiary or any other pe-rson.
.i;Ji <:1 ~x. AMENDMENTS ;)i Any or all of the covenants herein may be annulled, amended or modified at any time at the recommendation of the Architectural Control Authority, or its successors• and ratified .t-;r a vot.e . of. two-th1l"ds of the lot owners .frf the Subdivision. Al:t. such lot owners shall be given thirty (30) daj,s notice in writing o.f any proposed amendment before same is adopted. There· shall be- no annullment, amendment or mod1f1cation of :these covenants without the prior recom mendation of the Architectural . Control Authority.
x.
BINDING EFI'ECT
All of the provis:!.ons hereof shall oe covenants running with the land thereby affected. The provisions hereof shall be bind ing upon and inur•e to the benefit of the owners of' the land affected and the Developer and their respective heirs, executors, adminis trators, successors ~nd assigns.
·· XI, CA{'TIONS Tlte captions inserted .at the beginning of any paragraph o-f: these Rest1•ictions are intended for convenience or reference only and shall not be deemed to c6-nstitute a part of these Restrictions nor be used in the constructi~n or interpretation of this instrument nor shall such captions be de-~med indicative of the intent of any party hereto. · ·
,rt4/ ~ ~TNES·s_. my hand at Houston,Texas, on this the /.;;, .day t:Mr<" . ·
of j :· ~972. VENTURE DEVELOPMENT COMPANY A Partnership .. BY Smith Land Company, Inc . ,
· · Partner, Agent and Attorney-in-Fact
ATTEST:
*28 -1~- -1291 1-163
EXHIBIT 1, page 12
TAB J - page 12
56-7405
THE STATE OF TEXAS §
I
COUNTY OF~ § BEFORE ME, the undersigned, a Notary Public in and f-0r s id County and State. on this day personally appeared · . - 1n ~~ , Vice President of SMITH LAND . . COMPANY, , .NC., saidCorporaon being , a P!l-:rtner in and agent ~lid attorney-in' fact for Venture Developmen~ Company, a partnership, . known to me to be the person and officer whose name is subscribed· to the foregoing instrument and acknowledged>to me that the same was the act of a-aid Sm1 th Land Company, Inc. t a, Texas corporation. a.rid.: that he· executed the same as the act and deed of such Corp-oration ·-as · a partner in and agent and attorney;.in-fa.ct for VenturP. Development Company, for . the purposes and ·consideration therein expressed a.nil in the .capacities therein stated.
· · ·
;:;P--
/l.. __ Gl~N UNDER MY HAND AND SEAL·OF OFFICE, d this ----"---- ay of ~ , . , 1972. •oe_,}/4 .. --,(c-.e, JI. /(&-4_. • Not~~Y-Pub~ic in and for ·- - - - - ---~=----'-------- County, Texas .
~ .. ~ : ~ ~,n ;= =a, : g!~ tr :c "'· ~ "' "' [0] • -., v,C = .t , ... '!' --~ ""'' : .... '" ~ ~ .. - .......
... ...
sr.r.n: or mrs · · COONTV OF '!IIMII I MfdJ c<rtilJ 11'.et t:,~ ll!!mlmeir( - 0 " .. .. _...,d hcfllOII bJ -. - " ' • d,l-, ·"' •t the - ktC~.«ll:>, ill lt.t VO!ua afld ~ ol 11N .- - , 11E1D01 Iii 1,a;,is t.::mt,, 1n..-s, 2S S!MIII" . .,.._. (IJ 9i '.
MAR ff 1912' _· . . *29 ·1291 .. 1ACA ,.::~ ... , -;.· -; · . . .. ' : - ,.-: .q~ ·, ·;,,::
' 1 ··: ,.~~'. _- '. ."! EXHIBIT 1, page 13 TAB J - page 13