Pt. Tesoro 3

THE STATE OF TEXAS PROTECTIVE COVENANTS AND LANDOWNERS AGREEMENT

COUNTY OF NUECES PADRE ISLAND – CORPUS CHRISTI,
POINT TESORO UNIT 3

Padre Island Investment Corporation, a Texas corporation, hereinafter called “Owner”, is the owner of the surface estate in and to the following described property situated in Nueces County, Texas, to-wit:

Padre Island – Corpus Christi, Point Tesoro Unit 3, a subdivision of Padre Island, Nueces County, Texas, as shown by map or plat thereof recorded in Volume 35, pages 22 and 23, Map records of Nueces County, Texas, reference to which is here made, hereinafter referred to as the “addition” or “subdivision”;

subject to that certain lien in favor of Corpus Christi State National Bank, which joins herein for the sole purpose of acknowledging, ratifying and approving the covenants and restrictions hereinafter set forth.

Owner has subdivided said addition into lots and blocks with intervening streets, beautification areas, canals and easements, for the construction, operation and maintenance of streets, beautification areas, canals, utilities, drainage facilities and easements, and Owner has dedicated said streets, beautification areas and easements, as set forth on the above described map or plat.

I. SCOPE OF RESTRICTIONS

1. For the purpose of creating and carrying out a uniform plan for the improvement and sale of said addition, as a high-quality, marina type subdivision, to be constructed by Owner on its property situated on Padre Island, Nueces County, Texas, being the property described in deed into Owner dated July 5, 1965, recorded in Volume 1097, page 367, Nueces County Deed Records, reference to which is here made, which property is hereinafter referred to as the “Padre Island-Corpus Christi Project”, or simply as “Padre Island-Corpus Christi”, the following restrictions, conditions and use limitations are hereby established, adopted and imposed upon each lot in said addition as shown by said map or plat thereof, save and except lot 5 of Block 1 and lot 20 of Block 18.
2. The restrictions, conditions and use limitations hereinafter set forth shall constitute covenants running with the land, shall be binding upon and inure to the benefit of Owner, its successors and assigns, and upon all persons acquiring property in said addition, whether by purchase, descent, devise, gift or otherwise, and each person, by the acceptance of title to any lot out of such addition, shall agree and covenant to abide by and perform the terms, conditions, restrictions and covenants as set forth herein. Such restrictions, conditions and use limitations shall be made a part of each contract and/or deed executed by or on behalf of Owner conveying any lot by reference to the place of record of this instrument and by acceptance thereof, the grantee, and all persons claiming under him, shall be subject to and bound thereby, and each such contract and/or deed shall be conclusively held to have been executed, delivered and accepted subject to all the terms, conditions and restrictions set out in this instrument. In the event, however, of the failure of any contract and /or deed to any lot in said addition to refer to this instrument, this instrument shall nevertheless be considered a part thereof, and any conveyance of such lot shall be construed to be subject to the terms of this instrument.

II. DEFINITIONS

1. A “lot” as used herein, shall be interpreted to mean a residential building site.

2. A “corner lot” is a lot which abuts more than one street. Any lot, except a corner lot, shall be deemed to front the street or canal upon which it abuts. A corner lot shall be deemed to front on the street on which it has the smallest dimension.

3. A “canal lot” is a lot which abuts a canal.

4. An “interior lot” is a lot which does not abut a canal.

5. A “canal” is a waterway. .

6. A “bulkhead line” is that line along which a retraining structure (bulkhead) is installed for the purpose of maintaining shore and canal protection, as shown on the plat of the subdivision.

7. The “restricted building area” is that portion of a lot lying between the bulkhead lines of such lot, as shown on the plat of the subdivision.

8. The “water building area” is that portion of a lot lying between the restrictive building line and the bulkhead line of such lot, as shown on the plat of the subdivision.

9. A “mooring area” is that portion of a canal abutting a canal lot and designated as such on the plat of such subdivision within which limited mooring facilities may be constructed as set forth in paragraph 3 of Part IV, below.

10. A “navigation channel” is that portion of each waterway or canal lying between the water building lines with respect to canals abutting Blocks 14, 15, 16 and 17 and that portion of each waterway or canal lying outside of the mooring area with respect to canals abutting Block 1. Absolutely no obstructions are permitted in any navigation channel.

11. A “canal easement” is an easement designated on the plat of such subdivision, which easement may be used by Owner, its successors and assigns, for the construction, maintenance and /or installation of canals and bulkheads. That portion of each canal lot lying between the bulkhead line and the rear property line on a canal is subject to a canal easement.

12. A “street” is any road, street, avenue, court, circle, lane, boulevard, way or drive, designated as such on the plat of such subdivision.

13. A “utility easement” is any easement designated as such on the plat of such subdivision. Such easement may be used for the construction, maintenance and/or installation of any and all utilities, sewage, telephone and water drainage facilities (surface and subsurface) unless the easement is designated for a specific use on the recorded plat of the subdivision, in which event such easement may be used only for the purpose designated on such plat.

III. ARCHITECTURAL CONTROL

1. The Architectural Control Committee, hereinafter called “the Committee”, is composed of three (3) members. The initial members, each of whom shall serve until his successor is named as provided herein, are:

a. Ben D. Marks, 1004 The 600 Building, Corpus Christi, Texas 78401.
b. Robert Marks, 2001 South Staples, Corpus Christi, Texas 78404.
c. William Whittet, 823 North Tancahua, Corpus Christi, Texas 78401.

A majority of the Committee may designate a representative to act for it. In the event of the death or resignation of any member of the Committee, the remaining members shall have full authority to designate and appoint a successor. No member of the Committee, or his designated representative, shall be entitled to any compensation for services performed hereunder. At any time, the record owners of a majority of the lots or tracts into which Padre Island-Corpus Christi shall then be subdivided shall have the power to change the membership of the Committee, to withdraw powers and duties from the Committee, or to restore the powers and duties of the Committee. Such action shall be effective upon recordation of a written instrument properly reflecting same.

2. No building, structure or improvement of any nature shall be erected, placed or altered on any lot until the construction plans and specifications and a plan showing the location of such building, structure or improvement have been approved by the Committee as to quality of workmanship and materials, harmony of external design with existing structures and as to location with respect to topography and finish grade elevation and meeting the other standards set forth in this instrument, and in the instrument conveying such tract out of owner. In addition, no substantial change in the originally approved finish grade elevation of any lot shall be made without the prior written approval of the Committee.

3. Final plans and specifications shall be submitted in duplicate to the Committee for approval or disapproval. At such time as the plans and specifications meet the approval of the Committee, one complete set of plans and specifications will be retained by the Committee and the other complete set of plans will be marked “Approved”, and returned to the lot owner. Any modification or change to the approved set of plans and specifications must again be submitted to the Committee for its inspection and approval.

4. The Committee’s approval or disapproval as required in these covenants shall be in writing. If the Committee, or its designated representative, fails to approve or disapprove such plans and specifications within thirty (30) days after they have been submitted to it, and if no suit to enjoin the construction is commenced prior to the completion of such construction, then approval is presumed.

5. The Committee shall have the right and authority to waive, modify, alter, change or approve any covenant, term, condition or restriction where, in the opinion of the Committee, such change is necessary or required for the advantage and best appearance of the subdivision, in the following particulars, to-wit:

a. Change all restrictions in conflict where one lot and all or a portion of other contiguous lots are being used together for the purpose of building a residence.

b. Modify these restrictions in the case of lots which are unusual in size, or which are of an unusual or irregular shape, where such change is deemed best for the advantage or best appearance of the immediate community.

6. The Committee shall have the authority to make final decisions in interpreting the general intent, effect and purpose of these restrictions.

IV. GENERAL LAND USE

1. Except as set forth in paragraph 1 of Part I, all lots in said subdivision shall be used for single family dwellings, and for no other purpose.

2. No lot, as presently platted, may be further subdivided into smaller lots or tracts.

3. No structure or obstruction of any nature whatsoever shall be constructed or allowed on, in or under any navigation channel. Docks, piers and mooring posts may be constructed within the mooring area only after the size, design and placement of such have been approved in writing by the Committee and the Trustee, its successors and assigns, as provided in Part VI, below.

4. All buildings and other improvements placed on any of said lots shall be newly erected on said tract and no second-hand or used buildings or other improvements shall be moved onto any of said lots and no used or second-hand materials may be used in the exterior of such improvements unless specifically approved in advance, in writing, by the Committee.

5. No commercial, trade or business activity of any nature shall be carried on upon lot, nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood. No cattle, hogs, poultry, horses, or other animals may be kept on any part of such tract, except that this paragraph shall not preclude the keeping of pets or animals other than the above mentioned such as are ordinarily kept as pets in residential subdivisions provided they are not kept or bred for any commercial purposes.

6. No outside toilet will be permitted, and no installation of any kind for disposal of sewage shall be allowed which would result in raw or untreated sewage being carried into water bodies, except as may be approved by the proper state and local authorities. No septic tank or other means of sewage disposal may be installed unless approved by the proper authorities having jurisdiction with respect thereto (including, but not limited to, the Health Department of Nueces County, Texas, and the State of Texas). The drainage of septic tanks into any road, street, alley or public ditch, either directly or indirectly, is strictly prohibited.

7. No oil drilling, oil development operations, oil storage, oil refining, quarrying or mining operations of any kind shall be conducted upon any tract by Owner or its successors in interest.

8. No sign of any kind shall be displayed to the public view except one professional sign of not more than five square feet advertising the property for sale, or signs used by a builder to advertise the property during the construction and sales period.

9. No structure of a temporary character, nor any trailer, basement, tent, shack, garage, barn or other outbuilding, or any part thereof, shall be used as a residence or dwelling, either temporarily or permanently. Garages and outbuildings that are appurtenant to a residence may be erected on each building site upon which a main dwelling has been erected.

10. House trailers, buses, trucks or similar vehicles, shall be parked only as and where approved by the Committee.

11. No tract shall be used or maintained as a dumping ground for rubbish or trash.

12. No building material of any kind or character shall be placed or stored upon any lot until the owner is ready to commence improvements, and then such material shall be placed within the property lines of the building site upon which the improvements are to be erected and shall not be placed in the streets or between the roadbed and property line.

13. Garbage shall not be kept except in sanitary containers. Such containers shall be kept in a clean and sanitary condition and shall be stored so as not to be seen from a street or canal.

14. No garage or outbuilding apartments for rental purposes will be permitted on any lot. All living quarters on the property, other than the main building, are to be for the bona fide use of the owner’s or occupant’s immediate family or servants only.

15. No clotheslines may be placed where they would be visible from a street or canal. Such clotheslines must be enclosed by a hedge or other type screening enclosure as may be approved by the Committee as a part of the plans for the improvements to be located on the property.

16 No radio or television aerial or guy wires shall be maintained on any portion of any lot forward of the front building line of the respective main building.

17. Construction must begin within three (3) months after the approval of the plans by the Committee. Completion of such improvements must take no longer than nine (9) months from the start of construction, unless delayed for some reason beyond owner’s control, in which event the Committee may extend the foregoing time limits.

V. SIZE, DESIGN AND PLACEMENT OF IMPROVEMENTS

1. Facing: All improvements on any lot shall be constructed so as to face the street, upon which such lot fronts, as specified in paragraph 2 of Part II, or as approved by the Committee. Improvements placed on corner lots may face as approved by the Committee.

2. Minimum Floor Areas: No dwelling shall be permitted on any lot within the subdivision unless the floor area of the enclosed main dwelling, exclusive of porches, garages, whether attached or detached, breezeways, patios or other appendages, complies with the following requirements:

a. The area of the enclosed main dwelling of any one-story single family residence must contain not less than 1,000 square feet;

b. The first floor area of the enclosed main dwelling of any two-story single family residence must contain not less than 800 square feet.

3. Building Lines: No building shall be erected on any lot or lots in said subdivision in front of the front building line shown on the map of said subdivision nor farther away from the street lot line than is determined to be in harmony with existing structures by the Committee. However, garages which open toward the street shall be constructed at a minimum distance of twenty feet (20’) from the street lot line so as to provide driveway parking on the lot. There shall be no minimum side lot building line, except that the total width of the side yards (or yard) shall not be less than ten feet (10’). That portion of any wall situated nearer than five feet (5’) from a side lot line shall have no windows from the height of the original grade level of the lot to a height of ten feet (10’), and such wall shall meet the requirements for fireproof construction as set forth in the Southern Standard Building Code. No building shall be erected beyond the rear building line or the water building line as shown on the plat of the subdivision.

4. Foundations: Any foundation or structure constructed or installed within the restricted building area must be pile supported, or supported in some manner as may be approved by the Committee, so that no additional stress or load shall be placed upon the bulkhead. The foundation of any structure situated between the front building line and the bulkhead line must be enclosed at the perimeter with masonry or wood construction which is in harmony with the remainder of the main dwelling.

5. Structures Located Within Water Building Area: Any structure to be constructed or installed within the water building area must be pile supported and must comply with the following:

a. All structures, except vertical pilings, steps, docks and other similar structures which may be approved by the Committee must have a minimum vertical clearance of eight feet (8’) above mean sea level.

b. Any piling extending above the level of the top of any bulkhead must be of reinforced concrete acceptable to the Committee, or, if wood or other type piling is used, it must be enclosed at the perimeter in accordance with paragraph 3 of this Part V.

6. Exterior Walls: The design of and materials used in the exterior walls and surface areas of the main structure and any outbuildings constructed on any lot must be in keeping with the general architectural design of the main dwelling and other structures in the subdivision and must extend to the ground. Asbestos may be used only as approved by the Committee.

7. Roof: The pitch of the roof of all structures constructed on any lot must be approved by the Committee.

8. Fences or Walls: No fence or wall shall be erected, placed, altered or maintained on any tract without the prior written approval of the Committee.

9. Design and Quality: All improvements constructed shall be of a design and quality of construction to comply with the hurricane design requirements of the Southern Standard Building Code so as not to cause undue hazard to neighboring structures.

10. Upkeep: The purchaser of property in said subdivision shall keep the weeds out of the particular tract owned by him and shall not permit the accumulation of trash, rubbish or other unsightly articles on the premises, the easement or in the street abutting the same. The area in all the streets between the pavement and the property line shall at all times be kept clean and free of unsightly obstacles. Owner shall have the privilege of having said tracts cleaned to comply with the above and any reasonable expense incurred in doing the same shall be paid by the owner of the respective lot or lots.

VI . LANDOWNERS’ AGREEMENT

In order to provide for the common use, enjoyment, benefit and maintenance of the canals, (including the concrete bulkheads along such canals), parks, beautification areas, streets and other common areas within Padre Island-Corpus Christi (hereinafter referred to as “common areas”) and for the preservation of a marina type community of the highest quality, Owner, for the benefit of itself and each successor owner of a tract, hereby binds itself, its assigns and each successor owner, as follows:

1. At such time as any of the common areas in Padre Island-Corpus Christi have been improved and are not being maintained by Nueces County, a city, or other type of taxing authority within which such addition is located, Owner shall convey such common areas to Padre Island Investment Corporation, Trustee, hereinafter called “Trustee”, which shall have such supervisory authority to provide for the proper maintenance of the common areas as may be appropriate to such subdivision. Trustee shall not be liable to an owner of any interest in such subdivision for any damage, claim or expense for the manner in which said common areas are maintained and repaired, or for failure to maintain or repair said common areas.

2. In order to provide a fund for the proper maintenance of such common areas, hereinafter called “Maintenance Fund”, there is hereby imposed upon each canal lot in the subdivision an annual maintenance charge which shall not exceed two cents ($0.02) per square foot of such lot, and there is hereby imposed upon each interior lot in the subdivision an annual maintenance charge which shall not exceed one cent ($0.01) per square foot of such lot. Such maintenance charge shall be determined annually by the Trustee based upon the projected cost of maintaining such common areas; however, no maintenance charge shall be assessed by Trustee until some portion of the common areas has been improved. Once assessed by the Trustee, one-twelfth (1/12) of such maintenance charge shall be payable monthly, in advance, on the first day of each month, by the beneficial owner of a lot in such subdivision. The maintenance charge hereby imposed shall not apply to Owner, or to lots to which Owner owns both the record and beneficial title.

3. Neither Owner nor Trustee shall be liable or responsible to any person or persons for failure or inability to collect the maintenance charge or any part thereof from any person or persons.

4. The Maintenance Fund may be pooled, merged or combined with the maintenance funds of other portions of the Padre Island-Corpus Christi Project as developed by Owner, provided the lots and/or owners of lots in such other portions of such Padre Island-Corpus Christi Project are subject to a maintenance charge, lien and administrative provisions substantially the same as set forth in this Part VI. Such pooled maintenance fund may be expended by the Trustee for the general benefit and common good of the various sections or units of Padre Island-Corpus Christi paying into such funds without regard to the amount collected from each section or portion. Trustee may use such funds, or any part thereof, for safety and/or recreational projects and for developing, improving and maintaining any and all of the common areas which the owners and /or occupants of lots in any of the sections or portions of Padre Island-Corpus Christi may be privileged or shall have the right to use, regardless of who may own such common areas and regardless of their location within the entire Padre Island-Corpus Christi Project. It is agreed and understood that the judgment of the Trustee, as custodian and administrator of said Maintenance Fund, when used in good faith in the expenditure of said funds, or any part thereof, shall be binding, final and conclusive upon all parties in interest. Trustee shall receive no compensation for acting as custodian and administrator of said Maintenance Fund.

5. The payment of the maintenance charge hereby imposed shall be secured by an express lien in favor of Trustee, as custodian and administrator of the Maintenance Fund, which lien is placed and imposed upon each lot in the subdivision subject to such charge. There is hereby granted unto the Trustee an express lien against each lot or parcel of the subdivision to secure all obligations of the owner or owners of said lot or parcel imposed upon such owner, or lot, under the provisions hereof. Said lien may be foreclosed in the same manner as a vendor’s lien, without prejudice, however, to any other rights, powers or causes of action which the holder of said lien may have against any party who is then or who has theretofore been the owner of the property affected thereby. Said lien and all other provisions of this agreement shall be secondary and subordinate, however, to any liens, deeds of trust and encumbrances whatsoever given to secure the purchase price of the lot or any part thereof, or given to any bank, savings and loan association, insurance company, trust company, fraternal benefit organization, or corporation with banking or related powers, lawfully lending money for the purpose of making repairs or constructing dwellings or any other improvements whatsoever on any portion of such lot, or acquiring any note or other evidence of indebtedness previously made for any such purpose. If any such lender or party acquiring such indebtedness should be in doubt as to the purpose for which such loan was made, or indebtedness incurred, or as to whether the lien herein granted is subordinate to any lien or deed of trust given for the purpose of securing any such mortgage or indebtedness, such lender or party acquiring such indebtedness may rely conclusively upon the written statement of the Trustee, with respect thereto. The Trustee may release or subordinate said lien and any other provisions of this agreement, in whole or in part, with respect to any lot or lots, should it deem it advisable, for any reason whatsoever, without affecting said lien insofar as it applies to any other lot or lots in the subdivision.

Without diminishing the personal obligations of any owner for any sum imposed under the terms hereof, the lien hereby granted upon any lot shall not secure any sum in excess of the lesser of the following amounts:

a. The unpaid assessments made under the terms hereof for the four years next preceding the date that such lien is sought to be asserted or foreclosed; or

b. The sum of One Thousand dollars ($1,000.00).

6. Any person negligently or willfully damaging or destroying all or any portion of the common areas, including the bulkheads and tie backs, shall be responsible to the Trustee for damages, and the Trustee shall use any funds collected by claim, lawsuit or settlement agreement growing out of such damage or destruction, to repair such damage or destruction, to the extent of such funds.

7. Trustee shall have, and it is hereby granted, the full right, power and authority to convey all of its right, title and interests in and to the common areas and the Maintenance Fund as well as all of its powers, rights, liens, responsibilities, duties and authority under the terms of this Part VI to: (a) a non-profit corporation, or other organization, formed by Owner for the purpose of maintaining the common areas in any portion of the Padre Island-Corpus Christi Project; or (b) a public or quasi-public corporation or entity with the power to tax such as a city, Nueces County or a public district having such powers.

8. All references to “Trustee” in this Part VI shall apply with equal force and effect to any successor in interest to Trustee, as provided in paragraph 7 of this Part VI.

VII. DURATION

The restrictions and covenants herein set forth shall continue and be binding upon Owner, its successors and assigns, for a period of thirty-five (35) years from this date. At the expiration of said term of thirty-five (35) years the restrictions and covenants herein set out shall automatically be extended for an additional ten (10) year period and for successive periods of ten (10) years thereafter, unless same are nullified or revised as hereinafter provided. After the expiration of thirty-five (35) years from the date of this instrument, the owners of a majority of the lots in this subdivision may execute and acknowledge an agreement in writing terminating or revising these restrictions and covenants and file the same in the Office of the County Clerk of Nueces County, Texas, or in such office as conveyances of real estate may be required to be filed, at such time, thereupon these restrictions and covenants shall be null, void and of no further force and effect, or shall be modified or revised as such instrument may direct.

VIII. AMENDMENT

At any time the owners of the legal title to 51% of the lots in such subdivision (as shown by the records of Nueces County, Texas) may amend the restrictions, covenants, conditions, and matters set forth herein by filing an instrument containing such amendment in the Office of the County Clerk of Nueces County, Texas, except that, prior to the expiration of fifteen (15) years from date hereof, no such amendment shall be valid or effective without the joinder of Owner, its successors or assigns.

IX. ENFORCEMENT

The restrictions, conditions and use limitations herein set forth shall be binding upon Owner, its successors and assigns, and all parties claiming by, through, or under them and all subsequent owners of each lot, each of whom shall be obligated and bound to observe such restrictions, conditions and use limitations, provided, however, that no such persons shall be liable except in respect to breaches committed during his or their ownership of said lot. The violation of any such restriction, condition or use limitation, shall not operate to invalidate any mortgage, deed of trust, or other lien acquired and held in good faith against said lot or any part thereof, but such liens may be enforced against any and all property covered thereby, subject, nevertheless, to the restrictions, conditions and use limitations herein mentioned. Owner, or the owners of any lot, or Trustee, its successors and assigns, shall have the right to enforce observance or performance of the provisions of this instrument. If any person or persons violates or attempts to violate any of the restrictions, conditions or use limitations contained herein, it shall be lawful for any person or persons owning any tract out of said Section A to prosecute proceedings at law or in equity against the person violating or attempting to violate the same, either to prevent him or them from so doing, or to correct such violation, or to recover damages, or to obtain such other relief for such violations as then may be legally available.

X. SEVERABILITY

Invalidation of any of the terms, provisions or covenants contained in this instrument by judgment or court order shall not in any way affect any of the other terms, provisions or covenants set forth in this instrument which shall remain in full force and effect.

XI. DEDICATION

This instrument of dedication relates to and affects only the above described property, and shall not affect any other property.

Executed this 12th day of May, 1969.

NOTE; SIGNATURES ON FILE FOR THIS DOCUMENT AVAILABLE IN PADRE ISLES PROPERTY OWNERS ASSOCIATION OFFICES