HomeMy WebLinkAboutORD 77-105a
ORDINANCE N0. - / D 6r
ENTI'T'LED AN ORDINANCE AMENDING CHAPTER 42
OF THE CODE OF ORDINANCES OF BEAUMONT, TEXAS,
AND IN PARTICILA2 THE BOUNDARIES OF THE
ZONING DISTRICTS AS INDICATED UPON -THE
ZONING MAP OF THE CODE OF ORDINANCES OF
BEAUMENT, TEXAS, BY CHANGING A 2.20 ACRE
TRACT OF LAND OUT OF A PORTION OF TRACT 3,
J. B.. LANGHAM ESTATE OUT OF THE HEZEKIAH
WILLIAMS LEAGUE, ABSTRACT 56, BEAUMONT,
JEFFERSON COUNTY, TEXAS, AS HEREINAFTER DES-
CRIBED, PRESENTLY ZONED "R-2", TO "LR -1";
PROVIDING FOR SEVERABILITY AND PROVIDING
A PENALTY.
BE IT ORDAINED BY THE CITY OF BEAUMONT:
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That Chapter 42 of the Code of Ordinances of Beaumont, Texas,
and in particular the boundaries of the zoning districts as indicated
upon the Zoning Map of the City of Beaumont, referred to in Section
42-9 thereof, is hereby amended by changing the zoning classification
of the following described tract of land, presently zoned "R-2", TWo
Family and Multiple Dwelling District, to "LR --1", Local Retail District,
to wit:
BEING 2.209 acres of land in the Hezekiah
Williams League, Abstract No. 56,
Jefferson County, Texas, and being
out of Tract 3 of the partition of
the J. B. Langham Estate in Cause No..
4009 in the 60th District Court and
described in Partition Decree dated
August 31, 1903, recorded in Volume 1,
Page 195 of the Minutes of said court;
said 2.209 acres also being apart of
the 1045.36 acres of land described in
the Deed dated February 13, 1933, from
Treadaway Land Ccupany, et al, to
Yount -Lee Oil Company recorded in
Volume 374, Page 113 of the Deed Records
of Jefferson County, said 2.209 acres
being more particularly described as
follows:
BEGINNING at a 1/2" iron pipe set on
the East line of Dowlen Road at a point
located North 30 33' 39" West a distance
of 478.76 feet from the point of inter-
section of the East line of Dowlen Road
with the South line of the above-described
Tract 3 of the partition of the J. B.
Langham Estate;
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THENCE North 30 33' 39" West with
the East line of Dowlen Road a dis-
tance of 801.60 feet to a 1/2"
iron pipe set at the intersection
of said East line of Dowlen Road
with the south line of the proposed
Delaware Street Extension for the
Northwest corner of the 2.209.acre
tract herein described;
THENCE North 860 51' 39" East with
the South line of said Delaware
Street Extension for a distance of
550.00 feet to a 1/2" iron pipe set
on a spoil bank approximately 6 feet
West of the West high bank of
Hillebrandt Bayou;
THENCE South 100 58' 07" East along
said spoil bank a distance of 175 feet;
THENCE South 860 08' 08" West a
distance of 550.0 feet;
THENCE North 3° 33' 39" West a distance
of 175.0 feet to the PLACE OF BEGINNING
containing 2.209 acres of land, more or
less,
and the official zoning Map of the City of Beaumont is hereby amended
to reflect such changes.
Spat i nn 9 -
That_
That in all other respects the use of the property herein-
above.described shall be subject to all of the applicable regulations
contained in Chapter 42 of the Code of Ordinances of Beaumont, Texas,
dated August 19, 1958, as amended.
Cavi -i nn I
That the terms and provisions of this ordinance shall be
deemed .to be severable, and that if the validity of the zoning af-
fecting any portion of the property described hereinabove shall be
declared to be invalid, the same shall not affect the validity of
the zoning of the balance of the property described herein.
Car +i nn d
That any person or corporation violating any of the terms
and provisions of this ordinance shall be subject to the same penalties
provided for in said Chapter 42 of the Code of Ordinances of Beaunont;
Texas.
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PASSED BY THE CITY COUNCIL of the City of Beaumont this
the '-�— day of,l(l/ 1977.
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CONDOMINIUM DECLARATION
FOR
MARSHALL PLACE TOWNHOUSES
SECTION SIX
KNOW ALL MEN BY THESE PRESENTS:
THAT WHEREAS, Nichols Company, a partnership, hereinafter
called "Declarant", is the owner of real property situated in the
County of Jefferson, State. -of Texas, being described as follows:
ITEM ONE:
Lot Six (6) in Block Four (4) of the MARSHALL PLACE,
UNIT II, ADDITION to the City of Beaumont, Jefferson
County, Texas, as per map or plat thereofof record
in the office of the County Clerk of Jefferson County,
Texas, reference to which is hereby made for all purposes:
ITEM TWO:
A perpetual easement on, over and across the West 14 feet
(W. 141) of Lot Seven (7) in Block Four (4) of the
MARSHALL PLACE UNIT;II, ADDITION to the City of Beaumont,
Jefferson County, Texas, as per map or plat thereof of
record in the office of the County Clerk of Jefferson
County, Texas, reference to which is hereby made for all
purposes.
This Item Two is for the purose of providing drainage
for and access to said Item'.One and shall carry with
it the right to build and maintain drainage facilities
and a paved private street on, over and across same.
This Item Two is an exclusive easement, with the exception
..that the owner of said Lot Seven (7) in Block Four (4)
of the MARSHALL PLACE UNIT 'TI, ADDITION to the City of
Beaumont, Jefferson County, Texas, as per map or plat
thereof of record in the office of the County Clerk of
Jefferson County, Texas, reference to which is hereby
made for all purposes, whether such owner be the present
owner thereof, or any future owner or owners thereof,
shall have the right to use such easement for the same
purposes in connection with and for said Lot Seven (7)
in Block Four (4) of the MARSHALL PLACE UNIT II, ADDITION
to the City of Beaumont, Jefferson County, Texas, as per
map or plat thereof of record in the office of the County
.,Clerk of Jefferson County, Texas, reference to which is
hereby made for all purposes. This Item Two is. hereby
severed from the fee to the land covered by such easement
and made an appurtenance to said Item One.
Note: Item One is subject to a perpetual easement on,
over and across the portion thereof described as follows:
The West 14 feet (W. 141) of Lot Six (6) in Block
Four (4) of the MARSHALL PLACE, UNIT II, ADDITION to the,
City of Beaumont, Jefferson'County, Texas, as per map. or
plat thereof of record in the office of the County
Clerk of Jefferson County, Texas, reference to which is
hereby made for all purposes.
This easement is for the purpose of providing access
to Lot Seven (7) in Block Four (4) of the MARSHALL
PLACE UNIT II, ADDITION to the City of -Beaumont, Jefferson
County, Texas, as per map or plat thereof of record
in the office of the County Clerk of Jefferson County,
Texas, reference to which is hereby made for all purposes,
and for and to the owner or owners thereof, whether present
or future, and shall carry with it the right to build
and maintain drainage facilities and a paved private
street on, over and across same;
which property is described and depicted on the Map or Plat thereof
prepared by Schaumburg & Polk, Inc., dated
marked MARSHALL PLACE TOWNHOUSES, SECTION SIX, EXHIBIT "All which
by this reference is made a part hereof; and
WHEREAS, Declarant, as Developer, desires to establish
a condominium regime under the Condominium Act of the State of Texas;
and
WHEREAS, Declarant has executed plans for the construction
of Two (2) two-story buildings and One (1) building partly two-
story and other improvements appurtenant thereto on the property
described in said Exhibit "A", which when completed shall consist of
eighteen (18) separately designated condominium units; and
WHEREAS, Declarant does hereby establish a plan for
the individual ownership in fee simple of estates consisting.of the
area or space contained in each of the apartment units in the Three
.(3) building improvements and the ownership by the individual and
separate owners thereof, as tenants in common of all of the. remaining
property.which is hereinafter defined and referred.to as the.general
common element
I Il
1. DEFINITIONS, unless the context shall expressly provide other-
wise.
(a) "Apartment" or "Apartment Unit" means an individual air
space unit which is contained within the perimeter walls, floors
and ceilings of a building as shown on said map.
(b) "Condominium Unit" means one individual air space
unit, together with the interest in the general common elements
appurtenant to such unit.
(c) "Owner" means a person, firm, corporation, partnership,
association or other legal entity, or any combination thereof, who
owns one or more condominium units.
(d) "Majority of Unit Owners" means the apartment owners with
51% or more of the votes weighed so as to coincide with percentages
assigned in this declaration.
(e) "General Common Elements" means and includes:
(1) The land on which the buildings are located;
(2) The foundation, columns, girders, beams, supports,
main wall's and roofs;
(3) The common green areas, yards, gardens, parking
area, fences, storage spaces, private streets,
private service drives, walks and service easements;
(4) The installations consisting of the equipment
and materials making up central services such
as power, light, gas and the like;
(5) All other parts of the property necessary or
convenient to its existence, maintenance and
safety, or normally in common use.
(f) "Limited Common Elements" means a part of the general
common elements reserved for the exclusive use of the owner of a
condominium unit; the heating and air conditioning systems serving
one condominium unit only and garage parking areas and patio areas
indicated on map as appurtenant limited elements to a specific
unit only shall be deemed limited common elements.
(g) "Entire premises" or "property" means and includes the
land, the building, all improvements and structures thereon, and all
rights, easements and appurtenances belonging thereto.
(h) "Common expenses' means and includes:
(1) All sums lawfully assessed. against the general
common elements by the Managing Agent or Board
of Managers;
(2) Expenses of administration and management, maintenance
repair or replacement of the general common elements;
(3) Expenses agreed upon as common expenses by the owners;
(4) Expenses declared common expenses by provisions of
this Declaration and by the By -Laws; --
Special assessements for capitol improvements to, and
extraordinary maintenance and repair of, all private
streets within the entire premises;
(6) A monthly assessment for each owner's pro -rata share
of the monthly utilities which may be metered or sold
to the condominium regime as a unit;
(7). Special assessments for ordinary maintenance and
repair, as well as special assessments for extraordi-
nary maintenance and repair, as well as capital
improvements for, all sewage collection systems and
water lines shared in common by, and servicing in
common, all owners within the condominium regime which
are not dedicated to, and accepted by, the City of
Beaumont and which are in easements so dedicated and
accepted.
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W "Association of Unit Owners" or "Association" means a
Texas Non-profit association, the By -Laws of which shallgovern
the administration of this condominium property, and which shall have
the obligation to reasonably maintain and repair private streets
and sewage collection systems and water lines shared in common by
all of the owners of the condominium units, the members of which
shall be all of the owners of the condominium units.
( j ) "Map", "Survey Map", or "Plans" means aid includes the
engineering survey of the land locating thereon all of the improve-
ments, the floor and elevation plans and any other drawings or
diagrammatic plan depicting a part of or all of the improvements
same being herewith filed, consisting of one (1) sheet labeled
Exhibit "A", and incorporated herein.
2. The map shall be filed for record simultaneously with the
recording of this Declaration as a part hereof, and prior to the
first conveyance of any condominium unit. Such map shall consist of
and set forth (1) the legal description of the surface of the land;
(2) the linear measurements and locations, with reference to the
exterior boundaries of the land, of the buildings and all other
improvements built or to be built on said land by Declarant; and
(3) floor plans and elevation plans of the buildings built or to
be built thereon showing the location, the building designation,
the apartment designation and the linear dimensions of each apart-
ment unit, and the limited common elements.
3. The real property is hereby divided in the following
separate fee simple estates:
(A) Eighteen (18) fee simple estates consisting of Eighteen
(18) separately designated apartment units, each such unit identified
by number and by building symbol or disignation on the map, the apart-
ments in each building being described as follows:
BUILDING A - Containing Six apartments, numbered Units
13 2, 33 4, 5, and 6, the size, dimensions, location and
boundaries of each being detailed on the survey plat
herewith filed marked Exhibit "A".
BUILDING B - Containing Six apartments, numbered Units
7, 8, 9,.10, 11, and 12, the size, dimensions, location
and boundaries of each being detailed on the survey plat
herewith filed marked Exhlbit "A".
BUILDING C - Containing Six apartments numbered Units
13, 14, 153 16, 17, and 1-8, the size, dimensions, location,
and boundaries of each being detailed on the survey plat
herewith filed marked Exhibit "A".
(B). The remaining portion of the entire premises, referred
to as the general common elements, which shall be held in common by the
owners, the interest of each therein being hereinafter set forth
and each undivided interest being appurtenant to one of the Eighteen
(18) apartment units.
(C) The percentage of ownership in the common blements allocated
to each apartment is as follows:
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Unit
Building
.Number
Designation
1
A
2
A
4
A
A
5
6
A
A
8
B
B
9
B
10
B
11
B
12
B
�3
C
14
C
15
C
16
C
�7
C
18
C
Percentage of
' -'Ow'n'e'rsh'ip '
4. A portion of the general common elements is set aside and
reserved for the exclusive use of individual owners, such areas
being the limited common elements. The limited common elements
reserved for the exclusive use of the individual owners are the
automobile parking spaces, storage spaces and patio spaces, which
are shown on the map. Such spaces are allocated and assigned by the
declarant to the respective condominium units as indicated on said
Exhibit "A", the patios assigned to each apartment unit being desig-
nated by the apartment unit number preceded by the -letter "P" and in
a like manner the garage assigned to'each apartment unit being desig-
nated by the apartment unit number preceded by the letter "G". In
like manner, heating and air conditioning systems serving only one
condominium unit shall be limited common elements. Such limited
common elements -shall be used in connection with the particular
apartment unit, to the exclusion of the use thereof by the other
owners except by invitation.
5. Each apartment and its undivided interest in and to the
general common elements appurtenant thereto shall be inseparable and
may be conveyed, leased or encumbered only as a condominium unit.
6. Every deed, lease, mortgage, trust deed or other instrument
may legally describe a condominium unit by its identifying apartment
number and building symbol or designation as shown on the map,
followed by the words, "MARSHALL PLACE TOWNHOUSES, SECTION SIX"
and by reference to this recorded Declaration and Map. Every such
description shall be deemed good and sufficient for all purposes to
convey, transfer, encumber or otherwise affect the general common
elements.
7. Declarant shall give written notice to the tax assessors of
the creation of condominium ownership of this property, as is pro-
vided by law, so that each apartment unit and its percentage of
undivided -interest in the general common elements shall be deemed
a separate parcel and subject to separate assessment and taxation.
8. A condominium unit may be held and owned by more than one
person as joint tenants, or as tenants in common, or in any real
property tenancy relationship recognized under the laws of the State
of Texas.
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9. The general common elements shall be owned in common by all
of the owners of the apartment units and shall remain undivided and
no owner shall bring any action for partition or division of the
general common elements. Nothing contained herein shall be construed
as a limitation of the right of partition of a condominium unit between
the owners thereof, but such partition shall not affect any other
condominium unit.
10. Each owner shall be entitled to exclusive ownership and posses-
sion of his apartment. Each owner may use the general common elements
in accordance with the purpose for which they are intended, with-
out -hindering or encroaching upon the lawful rights of the other
owners.
11. Each apartment shall be occupied and used by the owner only
as and for a single family residential dwelling for the owner, his
family, his social guests or his tenants.
12. If any portion of the general common elements encroaches
upon an apartment unit or units, a valid easement for the encroachment
and for the maintenance of same, so long as it stands, shall and does
exist. If any portion of an adjoining apartment unit or units encroaches
upon any portion of the general common elements, a valid easement
for the encroachment and for the maintenance of same, so long as it
stands, shall and does exist. For title or other purposes, such
encroachment(s) and easement(s) shall not be considered or determined
to be encumbrances either on the general common elements or the apart-
ment units.
13. Subsequent to the completion of the improvements described
on the map, no labor performed or materials furnished and incorporated
in an apartment unit with the consent or at the request of the owner
thereof, or his agent or his contractor, or subcontractor, shall be
the basis for filing of a lien against the general common elements
owned by such other owners. Each owner shall indemnify and hold
harmless each of the other owners from and against all liability
arising from the claim of any lien against the apartment unit of any
other owner, or against the general common elements for construction
performed, or for labor, materials, services or other products in-
corporated in the owner's apartment unit at such owner's request.
14. The administration of this condominium property shall be
governed by By -Laws of the non-profit association., hereinafter named
and hereinafter referred to as the "Association." A copy of such
By -Laws is hereto attached in Exhib.i.t .B he'r.eof, which Exhibit B is
incorporated herein by reference; and shall be deemed adopted by
Declarant as sole owner of the property herein described, and all
owners shall be bound thereby. Declarant may, at its election,
cuase to be formed a Texas non-profit corporation bearing said name,
in which event such non-profit corporation shall be composed of
owners of condominium units as herein set out, and such non-profit
corporation shall thereafter act and do things to be done by
"Association," and the said non-profit corporation, if formed, shall
be bound by, adopt and observe as its By -Laws, the said By -Laws hereto
attached. "Association" as here used shall refer to the member owners
as a group, both before and after incorporation.. In the event of
incorporation, a certified copy of the Certificate of Incorporation
of such "Association" shall be recorded.and which shall provide that
three persons shall act as a Board of Managers and shall serve as the
Managers until their successors have been elected and qualified. An
owner of -a condominium unit, upon becoming an owner, shall be a mem-
ber of the "Association" and shall remain a member for the period of
his ownership. The Managing Agent shall be Declarant or whatever
person or entity to whom Declarant for purposes of resale may convey
all its apartment units in this regime which at the time of such
conveyance it has not sold to owner occupants, and the Managing Agent
shall perform all of the duties of the Board of Managers until one
year after the execution hereof, unless all of the units in this.
regime are leased or sold prior to the end of such year at which
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earlier time Declarant shall have the option to cease being such
Managing Agent.
15. The owners shall have the irrevocable right, to be exercised
by the Managing Agent, or Board of Managers of the Association, to
have access to each apartment unit from time to time during reasonable
hours as may be necessary for the maintenance, repair or replacement
of any of the general common elements therein or accessible therefrom,
or for making emergency repairs therein necessary to prevent damage
to the general or limited common elements or to another apartment
unit or units.
16. An owner -shall maintain and keep in repair the interior of
his own apartment, including the fixtures thereon. An owner shall
also -maintain all electric lines, wires, conduits or systems and the
heating and air conditioning system serving his apartment unit,
whether within or without same. An owner -shall also maintain all the
plumbing serving his apartment unit, and maintenance of sewer lines
serving more than one apartment unit and running from the. end of
an apartment unit's single sewer linevto the point where such sewer
line becomes the property of the City of Beaumont shall be "common
expenses".
17. An owner shall do no act nor any work that will impair the
structural soundness or integrity of the building or impair any ease-
ment or hereditament. No owner shall in any way alter, modify, add
to or otherwise perform any work whatever upon any of the common
elements, save with written consent of the Board of Managers first
obtained.
18. An owner shall not be deemed to own the undecorated and/or
unfinished surfaces of the perimeter walls, ground.floor and roof
surrounding his apartment unit, nor shall such owner be deemed to
own the utilities running through his apartment unit which are utilized
for or serve more than one apartment unit, except as a tenant in common.
An owner, however, shall be deemed to own and shall maintain the inner
decorated and/or finished surfaces of the perimeter and interior walls,
floors, ceilings, doors, windows and such other elements consisting
of paint, wall paper and other such finishing materials.
19. Each owner shall comply strictly with the provisions of this
Declaration, the By -Laws and the decisions and resolutions of the
"Association" adopted pursuant thereto as the same may be lawfully
amended from time to time. Failure to comply with any of the same
shall be grounds for an action to recover sums due for damages or
injunctive relief or both, maintainable by the Managing Agent or
Board of Managers on behalf of the owners or, in a proper case, by
an aggrieved owner.
20. This Declaration shall not be revoked, nor shall any of the
provisions herein be amended unless all of the owners of Condominium
Units, and all of theholders of any recorded mortgages or Deeds of
Trust covering or affecting any or all condominium units unanimously
consent and agree to such revocation or amendments by instrument(s)
duly recorded.
21. The assessments made shall be based upon the cash requirements
deemed to be such aggregate sum as the Managing Agent or Board
of Managers of the Association shall from time to time determine
is to be paid by all of the owners, including Declarant, to provide
for the payment of all estimated "common"expenses" as that phrase is
defined above growing out of or connected with the maintenance and
the operation of thegeneral common elements, which sum may include,
among other things, cost of management, taxes, assessments, insurance
contracts purchased pursuant to the terms hereof insuring the buildings
and the owners thereof and their.mortgagees against such risks as
may be insured against under the terms hereof, landscaping and care
of grounds, common lighting, repairs, and renovations, garbage collections,
wages, water charges, legal and accounting fees,.management fees,.
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expenses and liabilities incurred by the Managing Agent or Board of
Managers under or by reason of this Declaration, the payment of any
deficit remaining from a previous period, the creation of a reasonable
contingency or other reserve or surplus funds as well as other
costs and expenses relating to the general common elements. The
omission or failure of the Board to fix the assessment for any month
shall not be deemed a waiver, modification or a release of the owners
from the obligation to pay.
The Managing Agent or Board of Managers shall obtain and maintain
insurance of the type and kind required by a majority of the unit owners,
issued by a responsible insurance company authorized to od business
in the State of Texas or by more than one responsible insurance
company authorized to do business in the State of Texas should the
same not be available for purchase from one such company and such
insurance may be written in the name of the Managing Agent or in the
name of the Board of Managers, as Trustee or Trustees for each apart-
ment owner and each apartment owner's mortgagee, if any, or it may be
written in such other names as a majority of the.unit owners may direct.
Such insurance shall not prejudice the rights of each owner to insure
his apartment on his own account and for his own benefit. The "Asso-
ciation" may also be named in such insurance policy*or policies as
insureds if required by the insuring company or companies. Such
insurance shall provide for a standard, non-contributory mortgagee
clause in favor of each first mortgagee. It shall also provide that
it cannot be cancelled by either the insured or the insurance company
until after ten days prior written notice to each first mortgagee.
Said Managing Agent or Board of Managers shall, upon request of any
first mortgagee, furnish a certified copy of such policy and the
separate certificate identifying the interest of the mortgagor. All
policies of insurance shall provide that the insurance thereunder
shall be invalidated or suspended only in respect to the interest of
..any particular owner guilty of a breach of warranty, act, omission,
negligence or non-compliance of any provision of such policy, including
,payment of the insurance premium applicable to that owner's.interest,
or who permits or fails to prevent the happening of any event, whether
occurring before or after a,loss, which under the provisions of such
Policy would otherwise invalidate or suspend the entire policy, but
the insurance under such policy, as to the interests of all other
insured owners not guilty of any such act or omission, shall not be
invalidated or suspended and shall remain in full force and effect.
Determination of maximum replacement value of all condominium units
(for insurance purposes) shall be made annually by one or more written
appraisals, copies of which -shall be furnished forthwith to each mort-
gagee of a condominium unit. In addition, each owner shall be notified
.of such appraisal(s).
22. All owners shall be obligated to pay the estimated assess-
ments imposed by the Board of Mangers or Managing Agent of the Asso-
ciation to meet the common expenses and by acceptance of a deed for a
unit whether expressly stated in such deed or not, shall be deemed -
to conversant and agree to pay to the Association of Unit Owners the
assessments provided for herein. Except for insurance premiums,
the assessments shall be made basically pro rata according to each
owner's percentage interest in and to the general common elements,
but not necessarily in such exact proportion if the Board of Mangers
deem such improper or unfair. Assessments for insurance premiums
shall be based upon the proportion of the total premium(s) that the
insurance carried on a condomium unit bears to total coverage. Assess-
ments for the estimated common. expenses, including insurance, shall
be due monthly in advance on or before the fifth day of each month.
Failure to pay by the fifteenth day of each month shall require the
imposition and assessment of a late charge of $5.00. The Managing
Agent or Board of Managers shall prepare and deliver, or mail, regu-
larly at least.every three months to each owner an itemized statement
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showing the various estimated or actual expenses for which the
assessments are made.
Declarant shall not be liable for assessments prior to the sale
or lease of all units.
Contribution for monthly assessments.shall be prorated if the
ownership of a condominium unit commences on a day other than on
the first day of the month.
23. No owner may exempt himself from liability for his contri-
bution towards the common expenses by waiver of the use or enjoyment
of any of the general or common elements or by abandonment of his
apartment.
24. All sums assessed but unpaid for the share of common expenses
chargeable to any condominium unit, including interest thereon at
ten percent per annum, shall constitute a lien on such unit superior
(prior) to all other liens and encumbrances, except only for:
(a). -.Tax and Special assessment liens in favor of any assessing
unit, and
(b) All sums unpaid on a first mortgage or first deed of trust
of record, including all unpaid obligatory sums as may be
provided by such encumbrances, and including additional
advances made thereon prior to the arising of such a lien.
To evidence such lien the Board of Managers or Managing Agent
may, but shall not be required to, prepare a written notice setting
forth the amount of such unpaid indebtedness, the name of the owner
of the condominium unit and a description of the condominium unit.
Such a notice shall be signed by one of the Board of Managers or
by the Managing.Agent and may be recorded in the office of the.Clerk
and Recorder of Jefferson County, Texas. Such lien for the common
expenses shall attach from the date of the failure of payment of the
assessment.
Such lien may be enforced by foreclosure of the defulting owner's
condominium unit by the Association in like manner as a mortgage on
real property upon the recording of a notice or claim thereof. In
any such foreclosure, the owner shall be required to pay the costs
and expenses of such.proceedings, the costs and expenses for filing
the notice or claim of lien and all reasonable attorney's fees. The
owner shall also be required to pay to the Association a reasonable
rental for the condominium unit during the period of foreclosure,
and the Association shall be entitled to a receiver to collect the
,same. The Association shall have the power to bid in the condominum
unit at foreclosure sale and to acquire and hold, lease, mortgage
and convey same.
To secure and enforce the payment of said assessments, and for the
auxiliary and cumulative enforcement of said lien hereinabove created,
Declarant has granted, sold and conveyed and by these presents does
grant, sell and convey. unto Morris Beck, Trustee, of Jefferson County,
Texas, and his substitute.or successors, each of the hereinbefore
described condominium units. To have and to hold the said premises,
together with the rights, privileges and appurtenances unto the said
Trustee, and to his substitutes or successors forever. And Declarant
does hereby bind itself, its successors and assigns, to warrant and
forever defend the said premises unto the said Trustee, his substitutes,
successors and assigns forever, against the claim or claims of all
persons claiming or to claim the same, or'any.part thereof, for and
upon the following trusts, terms, covenants and agreements, to -wit:
Declarant, its successors and assigns may hereafter become justly
indebted to the Association for the hereinbefore mentioned assessments
and should Declarant, its successors and assigns do and perform all of
the covenants and agreementsherein contained and make prompt payment
of the assessments hereby secured as the same shall become due and
,payable, then this conveyance shall become null and void and of no
further force and effect; but in the event of default in the payment
of any assessment hereby secured, in accordance with the terms hereof
it shall thereupon, or any time thereafter, be the duty of the Trustee,
or his successor or substitute, at the request of the Association
(which request is hereby conclusively presumed) to enforce this trust
and make sale of the condominium unit against which the assessment is
made, as provided in Article 3810, Revised Civil Statutes of Texas
1925, after notice as provided in said Article (but without any other
notice than is required by said Article 3810), and make due conveyance
to the purchaser or purchasers, with general warranty binding the
Declarant, its successors and assigns; and out of the money arising
from such sale, the Trustee acting shall first pay all expenses of
advertising said sale and making the conveyance, and then to the
Association the full amount of assessments owing, interest thereon,
and reasonable attorney's fees, rendering the balance of the sales
price, if any, to the owner of such unit prior to such sale, his heirs
or assigns; and the recitals in the conveyance to said purchaser or
purchasers shall be full and conclusive evidence of the truth of the
matters therein stated, and all prerequisites to said sale shall be
presumed to have been performed and such sale and conveyance shall be
conclusive.against the owner of such unit prior,to such sale, his
heirs and assigns.
In case of the absence, resignation, death, inability, failure
or refusal of the Truatee herein named or of any substitue Trustee
appointed hereunder to act, or in the event the Association shall
deem.'it desirable to remove without cause the Trustee or any substi-
tute Trustee and appoint another to execute this trust, then in any
of such events the Association shall have the right and is hereby
authorized and empowered to appoint a successor and substitute without
any formality other than an appointment and designation in writing;
and this appointment shall vest in him, as -Trustee, the estate and
title in and to all said units ' and he shall thereupon hold,possess
and execute all the rights, title, powers and duties herein conferred
upon the Trustee named herein; and the right to appoint a successor
or substitute Trustee shall exist as often and whenever from any of
said cuases any Trustee, original or substitute, cannot or will not
act, or has been removed without cause. The exercise or attempted
exercise of the power of sale herein contained shall not exhaust
said power of sale and shall not prevent any subsequent exercise
thereof.
It is especially agreed that, in the event of a foreclosure
under the powers granted herein, the person in possession of the
unit sold shall thereupon become the tenant -at -will of the purchaser
at such foreclosure sale, and should such tenant refuse to surren-
der possession of said unit upon demand, the purchaser shall thereupon
at his or.her option, be entitled to institute and maintain the statutory
action for forcible detainer -and procure a writ of possession there-
under. This possession shall in no wise preclude the purchaser from
bringing any other legal action for the possession of said unit and
the bringing of one character of action shall not preclude the other
and same may be exercised separately or simultaneously.
The amount of the common expenses assessed against each condominium
unit shall also be a debt of the owner thereof at the time the
assessement is made. Suit, to recover a money judgment for unpaid
common expenses shall be maintainable without foreclosing.or waiving
the lien securing same.
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_ Any encumbrancer holding a lien on a condominium unit may pay
any unpaid common expense payable with respect to such unit, and upon
such payment such encumbrancer shall have a lien on such unit for the
amounts paid of the same rank as the lien of his encumbrance.
25.. Upon the written request of any owner or.any encumbrancer or
prospective encumbrancer of a condominium unit, the Association,
by its Managing Agent or Board of Managers, shall issue a written
statement setting forth the unpaid common expenses, if any, with
respect to the subject unit, the amount of the current monthly
-assessment and the date that such assessment becomes due, credit
for advanced payments or for prepaid items, including but not
limited to insurance premiums, which shall be conclusive upon the
Association in favor of all persons who rely thereon in good faith.
Unless such request for a statement of indebtedness shall be complied
with within ten days, all unpaid common expenses which become due
prior to the date of making of such request shall be subordinate to
the lien of the person requesting such statement.
The Grantee of a unit shall be jointly and severally liable
with the Grantor for all unpaid assessments against the latter for
his proportionate share.of the common expenses up to the time of
the grant or conveyance, without prejudice to the Grantee's right to
recover from the Grantor the amounts paid by the ,Grantee therefor;
provided, however, that upon written request, any such prospective
Grantee shall be entitled to a statement from the Managing Agent or
Board of Managers, setting!'forth the amount of the unpaid assessments,
if any, with respect to the subject unit, the amount of the current
monthly assessment and the date that such assessment becomes due,
credit for advance payments or for prepaid items, including but not
limited to insurance premiums, which shall be conclusive.upon the
Association. Unless such request for a statement of indebtedness shall
be complied with within ten days of such request, then such Grantee
shall not be liable for, nor shall the unit conveyed be subject to
;.a lien for, any unpaid assessments against the' subject unit.
Upon the sale or conveyance of an apartment, all assessments
against a co-owner for his prorata share in the expenses as herein
..described and levied shall first be paid out of the sales price,
-or by the purchaser, in preference over any other assessments or
charges of whatever nature except the following:
(a) Assessments, liens and charges in favor of the State
and any.:political subdivision thereof for taxes past due and unpaid
on the 'apartment;
and
(b) Amounts due under first mortgage instruments duly recorded.
26. Any owner shall have the right from time to time to mortgage
orencumber his interest by deed of trust, mortgage or other security
instrument. A first mortgage shall be one which has first and para-
mount priority.under applicable law. The owner of a condominium unit
may create a second mortgage on the following conditions: (1) That
any such second mortgage shall always be subordinate to all of the
terms, conditions, covenants, restrictions, uses., limitations, obli-
gations, lien for common expenses, and other payments created by this
Declaration and by the By -Laws; (2) That the mortgagee under any second
mortgage shall release, for the purpose of restoration of any improve-
ments.upon the mortgaged premises, all of his right, title and interest
in and to the proceeds under all insurance policies upon said premises,
which insurance policies were effected and placed upon the mortgaged
premises by the Association. Such release shall be furnished forth-
with by a.second mortgagee upon written request to the Association.
27. In the event any owner of a condominium unit shall wish to
sell, lease-or.rent.the same, and shall have received a bonafide offer
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therefor from a prospective purchaser or tenant, the remaining
owners shall be given written notice thereof, together with an
executed copy of such offer and the terms thereof. Such notice
and copy shall be given to the Board of Managers -for all of the
.. owners. The remaining owners through the Board of Managers, or
a person named by them, shall have the right to purchase or lease
or rent the subject apartment upon the same terms and conditions as
set forth in the offer therefor, provided written notice of such
election to purchase or lease is given to the selling or leasing
owner, and a matching down payment or deposit is provided to the
selling or leasing owner during the ten-day period immediately
following the delivery of the notice of the bonafide offer and copy
thereof to purchase or lease.
In the event any owner shall attempt to sell, rent, or lease
his condominium unit without affording to the other owners the
right of first refusal herein provided, such sale or lease shall be
wholly null and,void and shall confer no title or interest whatsoever
upon the intended purchaser or lessee. Possession of or residence
in a condominium unit by any other person than the record owners,
their lineal descendants or relatives of their lineal descendants,
continuing for a period of ten (10) days, shall be deemed, for this
purpose, to constitute a leasing or renting of the condominium unit,
whether or not any consideration has been paid therefor; and in such
event, the Board of Managers may require the removalof such occu-
pant(s), it being hereby agreed that the Board of Managers, in such
event, shall be 'entitled to the possession of the condominium unit
upon demand therefor of and from such occupant, with or without notice
to the record owner(s) thereof; and in the event of failure to sur -
,render such possession, the Board of Managers may institute and main-
tain Forcible Entry and Detainer proceedings for the possession of
such unit, and have and retain such possession until the record owner
thereof, or his purchaser (in event of sale, all prerequisites of this
.:declaration having been complied with) retakes physical possession of
such premises. During any time when the Board of Managers shall have
possession of such unit hereunder, the record. owner and all of his
guests, licensees and invitees shall be deemed to waive any claim for
-damages to person or property in or on the units.
The sub-leasing.or sub -renting of said interest shall be subject
to the same limitations as are applicable to the leasing or renting
`thereof. The liability of the owner under these covenants shall con -
notwithstanding the fact that he may have leased or rented
said interest as provided herein.
In no case shall the right of first refusal reserved herein
affect the right of an owner to subject his interest in the project
..,parcel to a trust deed, mortgage, or other security intrument.
-The failure of or refusal by the Board of Managers toexercise
the right to so purchase or lease shall not constitute o
r be d
_ eemed
to'be a waiver of such right to purchase or lease ase when anw
o ner
receives any subsequent bonafide offer from a prospective purchaser
or tenant.
The provisions of this Article 27.shall not apply to any sale
lease or rental if made by Declarant at any time hereafter whether
same be. a "first sale or letting" or "resale or reletting" of an
apartment unit. Declarant shall have the lr
urth
er right to use any
apartment unit as office and sales area and ;display advertising
signs at the premises at any time hereafter until all units have been
sold by Declarant.
.The right of first refusal, as provided herein, shall extend and
run ,from.the date of execution of this Declaration.for the period of
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the lives of the now living descendants of H. G. Nichols, whichever
of said descendants shall live the longer, plus eighteen (18) years.
Except as is otherwise provided in paragraph 28, and except upon
a transfer of title to.a Public Trustee, or to a first mortgagee,
each grantor of a condominium unit, upon transferring or conveying
his interest, shall incorporate in such instrument of conveyance'an
agreement that the grantee carry out the provisions of the "right of
first refusal" as provided in this paragraph.
28. In the event of any default on the part of any owner under
any first mortgage which entitled the holder thereof to foreclose
same, any sale under such foreclosure, including delivery of a deed
to the first mortgagee in lieu of such foreclosure shall
be made free and clear of the provisions of paragraph 27, and the
purchaser (or grantee under such deed in lieu of foreclosure) of
such condominium unit shall be thereupon and thereafter, subject to
the provisions of this Declaration and By -Laws. If the purchaser
following such foreclosure sale (or grantee under deed given in lieu
of such foreclosure) shall be the then holder of the first mortgage,
or its nominee, the said holder or nominee may thereafter sell and
convey the condominium unit free and clear of the provisions of
paragraph 27, but its grantee shall thereupon and thereafter be
subject to all of the provisions thereof.
The transfer of a deceased joint tenant's interest to the
surviving joint tenant or the transfer of a deceased's interest
to a devisee by will or his heirs at law under intestacy laws
shall not be subject to the provisions of paragraph 27.
If an owner of condominium unit can establish to the satisfaction
of the Managing Agent or Board of Managers that a proposed transfer
is not a sale or lease, then such transfer shall not be subject to
the provisions of paragraph 27..
29. Upon written request of any prospective transferor, purchser,
tenant or an existing or prospective mortgagee of any condominium
unit, the Managing Agent or Board of Managers of the Association shall
forthwith, or where time is specified, at the end of the time, issue
a written and acknowledged certificate in recordable form, evidencing
that:
(a) With respect to a proposed lease or sale under paragraph
27, that proper notice was given by theselling or leasing owner and
that theremaining owners did not elect to exercise their option to
purchase or lease;
(b) With respect to a deed to a first mortgagee or its nominee
in lieu of foreclosure, and a deed from such first mortgagee or
its nominee, pursuant to paragraph 28, that the deeds were in fact
given in lieu of foreclosure and were not subject to the provisons of
pargraph 27;
(c) With respect to any contemplated transfer which is not in
fact a sale or.lease, that the transfer is not or will not be subject
to the provisons of paragraph 27;
Such certificate shall be conclusive evidence of the facts con-
tained.therein.
30. This Declaration hereby makes mandatory the irrevocable
appointment of an attorney-in-fact to deal with the property: -.upon
its destruction or obsolescence.
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Title to any condominium unit is declared and expressly made
subject to the terms and conditions hereof, and acceptance by any
grantee of a deed from the Declarant or from any owner shall con-
stitute appointment of the attorney-in-fact herein provided. All
of the owners -irrevocably constitute and appoint the non-profit
association hereinafter named, or its successor non-profit
corporation, if same be hereafter organized, their true and lawful
attorney in their name, place and stead, for the purpose of dealing
with the property upon its destruction or obsolescence as is hereafter
provided. As attorney-in-fact, the Association, by its President
and Secretary, shall have full and complete authorization, right and
power to make, execute and deliver any c.ontract, deed or any other
instrument with respect to the interest of a condominium unit owner
which are necessary and appropriate to exercise the powers herein
granted. Repair and reconstruction of the improvement(s) as used in
the succeeding subparagraphs means restoring the improvement(s) to
substantially the same conditions in which it existed prior to the
damage, with each unit and the general and limited common elements
having the same vertical and horizontal boundaries as before. The
proceeds of any insurance collected shall be made available to the
Association for the purpose of repair, restoration or replacements
unless the owners and all first mortgagees agree not. to rebuild in
accordance with the provisions set forth hereinafter.
(a) In the event of damage or destruction due to fire or other
disaster, the insurance proceeds, if sufficient to reconstruct the
i improvements) shall be applied by the.Association, as attorney-in-
fact, to such reconstruction, and the improvement(s) shall be promtly
repair ed and reconstructed.
(b) If the insurance proceeds are insufficient to repair
and reconstruct the improvement(s), and if such damage is not more than
fifty (50%) percent of all of the general common elements, not includ-
ing.land, such damage or destruction shall be promptly repaired and
reconstructed by the Association, as attorney-in-fact, using the pro-
ceeds of insurance and the proceeds of an assessment to be made against:
all of the owners and their condominium units. Such deficiency assess
ment shall be a common expense made pro rata according to each owner's
percentage interest in and to the general common elements and shall
be due and payable within thirty days after written notice thereof.
The Association shall have the authority to cause the repair or restor:
ation of the improvements using all of the insurance proceeds for such
purpose notwithstanding the failure of an owner to pay the assessment.
The assessment provided for herein shall be a debt of each owner, and
a lien on his condominium unit and maybe enforced and collected as is
provided in paragraph 24. In addition thereto, the Association,
as attorney-in-fact, shall have the absolute right and power to sell
the condominium unit of any owner refusing or failing to pay such
deficiency assessment within the time provided, and if 'not so paid,
the Associaiton shall cause to be recorded a notice that the condominium
unit.of the delinquent owner shall be sold by the Association. The
proceeds derived from the sale of such condominium unit shall be used
and disbursed by the Association, as attorney-in-fact, in the following
:.order:
(1) For payment of.the balance of the lien of any first mortgage.
(2) For payment of taxes and special assessment.liens in favor
of..any assessing entity;
(3) For payment of -unpaid common expenses;
(4) For payment of junior liens and encumbrances in the order of
and to the extent of their priority; and
(5) The balance remaining, if any, shall be paid to the
condominium unit owner.
(c) If more than fifty (50%) percent of all of the general
common elements, not including land, are destroyed or damaged, and
if the owners representing an aggregate ownership interest of one-
half of said condominium units, or more, do not voluntarily, within
one hundred days thereafter, make provision for reconstruction, which
plan must have the unanimous approval or consent of every first mortgagee,
the Association shall forthwith record a notice setting forth such
fact or facts, and upon the recording of such notice by the Associa-
tion's president and secretary, the entire remaining premises shall
be sold by the Association, as attorney-in-fact for all of the owners,
free and clear of the provisions contained in this Declaration;, the
Map and the By -Laws. The insurance settlement proceeds shall be
collected by the Association, and such proceeds shall be divided by
the Association according to each unit owner's interest (as such
interests appear on the policy or policies) and such divided proceeds
shall be paid into as many separate account as there are units covered
by this declaration, each such accounts representing one of the condo-
minium units. Each such account shall be in the name of the Asso-
ciation, and shall be further identified by the number of the apart-
ment unit and the name of the owner. From each separate account, the
Association, as attorney-in-fact shall use and disburse the total
amount (of each) of such accounts, without contribution from any
account to another, toward the full payment of the lien of any first
mortgage against the condominium unit represented by such separate
account. There shall be added to each such account, the apportioned
amount of the proceeds derived from the sale of the entire property.
Such apportionment shall be based upon each condominium unit owner's
percentage interest in the general common elements. The total Funds
of each account shall be used and disbursed, without contribution
from one account to another, by: -the Association, as attorney-in-
fact, for the same purposes and in the same order as is provided in
sub -paragraph (b)(1) through (5)of this paragraph.
If the owners representing an aggregate ownership interest of
three-fourths (3/4ths) of the condominium units, or more, adopt a
plan for reconstruction, which plan has the unanimous approval of
all first mortgagees, then all of the owners shall be bound by
the terms and other provisions of such plan. Any assessment made in
connection with such plan shall be a common expense and made pro rata
according to each owner's percentage interest in the general common
elements and shall be due and payable as provided by the terms of
such plan but not sooner than thirty days after written notice thereof.
The Association shall have the authority to eause the repair or
restoration of the improvements using all of the insurance proceeds
for such purpose notwithstanding the failure of an owner to pay the
assessment. The assessment provided for herein shall be a debt of
each owner and a lien on his condominium unit and may be enforced
and collected as is provided in paragraph 24.
In addition thereto, the Association, as attorney-in-fact, shall
have the absolute right and power to sell the condominium unit of any
owner refusing or failing to pay such assessment within the time pro-
vided, and if not so paid, the Association shall cause to be recorded
a notice that the condominium unit of the delinquent owner shall be
sold by the Association. The proceeds derived from sale.of such
condominium unit shall be used and disbursed by the Association,
as attorney-in-fact, for the same purposes and in the same order
as is provided in sub-paragraph(b)(1) through (5) of this paragraph.
(d) The owners representing an aggregate ownership interest of
three-fourths (3/4ths) of the condominium units covered by this
declaration,or more, may agree that the general common elements of
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the property are obsolete and that the same should be renewed or re=
,constructed. In such instance, then the expense thereof shall be
payable by all of the owners as common expenses; provided, however,
.'that any owner not agreeing to such renewal or reconstruction may,
give written notice to the Association that such unit shall be pur-
chased by the Association:for the fair market value thereof. If
such owner and the Association can agree on the'fair market value
thereof, then such sale shall be consummated within thirty days there-
after. If the parties are unable to agree, the date when either
party notified the other that he or it is unable to agree with the
other shall be the "Commencing date" from which all periods of time
mentioned herein shall be measured. Within ten days following the
commencement date, each party shall nominate in writing (and give
notice of such nomination to the other party), the appraiser who
shall be a member of the Beaumont Real Estate Board. If either
party fails to make such a nomination, the appraiser nominated shall
_.within five days after default by the other party appoint and asso-
ciate with -him another appraiser (to be selected from the Beaumont
°Real Estate Board). If the two appraisers designated by the parties
or selected pursuant hereto in the event of the default of one party,
are unable to agree, they shall appoint another appraiser (to be
selected from the Beaumont Real Estate Board) to be umpire between
them, if they can agree on such person. If they are unable to agree
upon such umpire, then each appraiser previously appointed shall
nominate two persons (each of whom shall be a member of the.Beaumont
-Real Estate Board), and from the names of the four persons so nominated
shall be drawn by lot by any judge ofany court of record in Texas,
and the name so drawn shall be the umpire . The nominations from
whom the umpire iso to be drawn by lot shall be submitted within ten
days of the failure of the two appraisers to agree, which in any
event shall not be later than twenty days following the appointment
of second appraiser. Thedecision of the appraisers as to the fair
market value or in the case of their disagreement, the decision of
the umpire, shall be final and binding. The expenses and fees of
`such appraisers shall be borne equally by the Association and the
owners.. .The sale shall be consummated within fifteen days thereafter,
and the Association, as attorney-in-fact, shall disburse such proceeds
.as is provided in sub -paragraph (b)(1) through (5) of this paragraph.
(e) The owners representing an aggregate ownership interest of
three-fourths (3/4ths) of the condominium units, covered by this
.declaration, or more, may.agree that the general common elements of
.the property are obsolete and that the same should be sold. In such
instance, the Association shall forthwith record a notice setting
forth such fact or facts, and upon the recording of such notice
by the Association's president and secretary, the entire.premises
shall be sold by the Association, as attorney-in-fact for all of the
owners, free and clear of the provisions contained in this Declara-
.tion,:the Map and -the By -Laws. The sales proceedg shall be apportioned
between the owners` on the basis of each owner's percentage interest
in the general common elements, and such apportioned proceeds shall
be paid into as many separate accounts as there are units covered by
,this declaration, each such account representing one condominium unit.
Each such account shall be in the name of the Association, and shall
.be further identified by the number of the Apartment and the name of
the owner. From each separate account, the Association as attorney-
in-fact, shall use.and disburse the total amount (of each) of such
funds, without contribution from one fund to another, for the same
purposes and in the same order as is provided in subparagraph (b)(1)
through (5) of this paragraph.
31. Prior to the first conveyance of any condominium unit,
Declarant shall execute and deliver a bill of sale to the Association,
transferring all items of personal property located.on the entire
premises and furnished by Declarant, which property is intended for
the common use and enjoyment of the condominium unit owners and occu-
pants. The -Association shall hold title to such property for the
use and enjoyment of'the condominium unit owners and occupants. No
owner shall have any other interest and right thereto, and all such
right and interest shall absolutely terminate upon the owner's
termination of possession of his condominium unit.
32. All notices, demands, or other notices intended to be
served upon an owner shall be sent by ordinary'or certified mail,
postage prepaid, addressed in the name of such owner in care of the
apartment number and building address of such owner. All notices,
demands, or other notices intended to be served upon the Managing
Agent, or'the Board of Managers of the Association, or the Association
shall be sent by ordinary or certified mail, postage prepaid, 3679
Calder, Beaumont, Texas, until such address is changed by a notice
of .address change duly recorded.
33. If any of the provisions of this Declaration or any paragraph,
sentence, clause, phrase, or word, or the application thereof in any
circumstances be invalidated, such invalidity shall not affect the
` validity of the remainder of this Declaration and the application of
any such provisions, paragraph, sentence,'clause3 phrase or word in
any other circumstances shall not be affected thereby.
34. The provisions of this Declaration shall be in addition and
supplemental to the Condominium Ownership Act of the State of Texas
and to all other provisions of law.
35.. That whenever used herein, unless the context shall otherwise
:.provide,.the.singular number shall include the plural, the plural
'the:singular, and the use,of any gender shall include all genders.
EXECUTED this. 30t.h day.of September , 1977:
NICHOLS COMPANY, A PARTNERSHIP
By•
H. G. Nichols, S..a Partner
THE STATE OF TEXAS §
..COUNTY OF JEFFERSON §
BEFORE ME, the undersigned authority, on this day personally
appeared H. G. Nichols, Sr. , known to me to be the person and partner
whose name is subscribed to the foregoing instrument, and acknowledged
to-me.that he executed the same as the act of NICHOLS COMPANY, a
partnership of which he is a partner, for the purposes and considera-
tion expressed,and in the capacity therein stated, and that he was
authorized to do so.
..-,.GIVEN UNDER MY HAND AND. SEAL OF OFFICE this 3,e.,Qi day of
October -,1977.
C�ep,
NOTARY PUBLIC IN AND FOR,
JEFFERSON COUNTY, TEXAS
7
f
EXHIBIT "B"
BY-LAWS
OF
MARSHALL PLACE TOWNHOUSES
SECTION SIX
ARTICLE I.
OBJECT
(Plan of Apartment Ownership)
1. The purpose for which this non-profit Association is formed
is to govern the condominium property situated in the County of Jef"
ferson, State of Texas, which property is described and depicted in
Exhibit "A", which by this reference is made a part hereof, and which
property has been submitted to the provisions of the Condominium
Ownership Act of the State of Texas.
2. All present or future owners, tenants, future tenants, or
any other person that might use the facilities of the project in any
manner are subject to the regulations set forth in these By -Laws.
The mere acquisition or rental of any of the condominium units
(hereinafter referred to as "Units") of the project or the mere act
.of occupancy of any of said units will signify that these By -Laws are
.accepted, ratified, and will be complied with.
ARTICLE II.
MEMBERSHIP, VOTING, MAJORITY OF OWNERS,
QUORUM, PROXIES
01)
1. Membership. Any person on becoming an owner of a condominium.
unit shall automatically become a member of this Association and be
subject to these By -Laws. Such membership shall terminate without
any.formal Association action whenever such person ceases to own a
condominium unit, but such termination shall not relieve or release any
such former owner from any liability or obligation incurred under, or
in any way connected with the condominium regime established by the
foregoing declaration, during the period of such ownership and
membership in this Association, or impair the rights or remedies which
the Board of Managers or the Association or others may have against
such former owner and member arising out of or in any way connected
with such ownership and membership, and the covenants and obligations
incident thereto. No Certificates of stock shall be issued by the
Association, but the Board of Managers may,if it so elects, issue
one membership card to the owner(s) of a condominium unit. Such
membership card shall be surrendered to the Secretary whenever owner-
ship of the condominium unit designated thereon shall terminate.
2. Voting. Voting shall be based upon the percentage of the
undivided interest of each unit owner in the general common elements.
An owner of an undivided fractional interest in and to a condominium
unit shall be entitled to a vote equal to his fractional ownership
interest in such unit. Cumulative voting is prohibited.
3. Majority of Unit Owners. As used in these By -Laws, the
term "majority of unit owners shall mean the apartment owners with
51% or more of the votes weighted so as to coincide with the percentages
assigned in the Declaration.
4. Quorum. Except as otherwise provided in these Bylaws,.
the presence in person or by proxy of a "majority of unit owners" as
defined in paragraph 3 of this Article shall constitute a quorum.
.5.- Proxies. Votes may be cast in person or by proxy.
Proxies may be filed with the Secretary before the appointed time,of
,each meeting.
ARTICLE III.
ADMINISTRATION
1. Association Responsibi'li'ties. The owners of the Units
.will constitute the.Association of Unit Owners, hereinafter referred
-.--...to as "Association," who will have the responsibility of administering
_the project through a Board of Managers.
2. &s
Place of Meetin. Meetings of the Association shall be
held at,such place as the Board of Managers determine.
3. Annual Meetings. The first annual meeting of the Associa-
tion shall be held on or before one year after the date hereof.
Thereafter, the annual meetings of the Association shall be held on
the fourth Monday of whatever month the first annual meeting is held
in, as that month comes around each succeeding year. At such meetings
there shall be elected by ballot of the owners of a Board of Managers
in accordance with the requirements of Paragraph 5 of Article IV
of these By -Laws. The owners may also transact other business of the
Association as may properly come before them.
4. Special Meetings. It shall be the duty of the President
to call a special meeting of the owners as directed by resolution of
the Board of Managers, or upon a petition signed by a majority of
the owners and having been presented to the Secretary. The notice
of any special meeting shall state the time and place of such
meeting and the purpose thereof. No business shall be -transacted at
a special meeting..except as stated in the notice unless by consent
of four-fifths of the owners present, either in person or by proxy.
5. Notice of Meetings. It shall be the duty of the Secretary
to mail A notice of each annual or special meeting, stating the purpose
,thereof,'as well as the time and place where it is to be held, to
each owner of record, at least 5 but not.,more than 10 days prior to
such meeting. The mailing of a notice in the manner provided in this
paragraph shall be considered notice served.
6.. Adjourned Meeting. If any meeting of owners cannot be
organized because a quorum has not attended, the owners who are
-present, either in person or by proxy, may adjourn the meeting to a
time not less than forty-eight hours from the time the original
meeting was called.
7. Order of Business. The order of business at all meetings
of.the owners of units shall be as follows:
(a) Roll Call
(b) Proof of notice of meeting or.waiver of notice
(c) Reading of minutes of preceding meeting
.(d') Reports of officers
(e) Reports of Committees
(f) Election of Managers
(g) Unfinished business
(.h) New business
ARTICLE IV
BOARD OF MANAGERS
1. Number and Qualification. The affairs of this Association
shall be governed by a Board of Managers composed of three persons.
The following persons shall act in such capacity and shall manage the
affairs of the Association until one year after the date hereof,
unless all of the units of this regime are leased or sold prior to the
.end of such year at which earlier time they:will have the option to
cease being members of the Board of Managers or unless their successors
are -elected prior to the end of such year, to -wit: H. G. Nichols,
H. G: Nichols,,Jr.,'and Reed Nichols.
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()/JL"I , <) �7 ® /C ,5'
/6-tHI/')11
2. Powers and Duties. The Board of Managers shall have the
powers and duties necessary for the administration of the affairs
of the Association and for the operation and maintenance of a first
class residential condominium project. The Board of Managers may
do all such acts and things as are not by these By -Laws or by the
..foregoing Condominium Declaration directed to be exercised and done
by the owners.
3. Other Powers and Duties. The Board of Managers shall be
empowered and shall have the duties as follows:
(a) To administer and enforce the covenants, conditions,
restrictions, uses, limitations, obligations, and all other p'ro-
visions set forth in the Condominium Declaration submitting the
property to the provisions of the Condominium Ownership Act of the
State of Texas.
(b) To establish, make and enforce compliance with such
reasonable house rules as may be necessary for the operation, use
and occupancy of this condominium project with the right to amend
same from time to time. A copy of such rules and regulations shall
be delivered or mailed to each member promptly upon the adoption
thereof. .
(c) To keep in good order, condition and repair all of the
general and limited common elements and all items of personal property
used in the enjoyment of the entire premises.
•(d) To insure and keep :insured all of the insurable general
common elements of the property in an amount equal to their maximum
..replacement value as provided in the Declaration. Maximum replacement
value shall be determined.annually by one or more written appraisals.
The type and kind of such insurance contracts shall be determined
by what a majority of the.unit owners direct. Further, to obtain
and maintain an owners, landlord and tenant comprehensive liability
insurance policy covering the entire premises in amountsnot less
..than $100,000.00 per person and $300,000.00 per accident and $50,000.00
Property damages and also such other types and kinds of insurance
covering such other risks as a majority of the unit owners shall
direct. To insure and keep insured all of the fixtures, equipment
and personal property acquired by the Association for the benefit
of the Association and the owners of the condominium units and
their first mortgagees.
(e) To fix,. determine, levy and collect the monthly prorated
assessments. To levy and collect special assessments whenever in
,the opinion of the Board it is necessary to so do in order to meet
increased operating ormaintenance expenses or costs, or additional
capital expense, or because of emergencies. All monthly or other
assessments shall be in itemized statement form and shall set forth
the detail of the various expenses for which the assessments are
.being made.
(f) To collect delinquent assessments by suit or otherwise
and to enjoin or seek damages from an owner as is provided in the
Declaration and these By -Laws.
(g) To protect and defend the entire premises from loss and
damage by suit or otherwise.
(h) To borrow funds in order to pay for any expenditure
or outlay required, to execute all such instruments evidencing such
indebtedness -which shall be the serveral obligation of all of the
• owners in the same proportion as their interest in the general common
elements.
(i) To enter into contractswithin the scope of their; -duties
and powers.
(j) To establish a bank account for the common treasury
and for all separate funds which are required, or may be deemed
advisable by the Board of Managers.
(k) 'To keep and maintain full and accurate books and
records showing all of the receipts, expenses or disbursements and to
permit examination thereof at any reasonable time by each of the owners,
and to cause a complete audit of the books and accounts by a competent
certified public accountant once each year.
(1) To prepare and deliver annually to each ownera statement
showing all receipts, expenses or disbursements since the last such
statement.
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kc( / )) ))--10 5'
(m) To meet at least once each quarter.
(n) To designate the personnel necessary for the maintenance
and operation of the general and limited common elements.
(o) In general, to carry on the administration of this
Association and to do all of those things necessary and reasonable
in order to carry but the communal aspect of condominium ownership.
Managing Agent. The Managing Agent shall be Declarant
in the foregoing Declaration or whatever person or entity to whom
suchDeclarant for purposes of resale may convey all its apartment
units in this regime which at the time of such conveyance it has not
sold to owner occupants and such Managirg Agent shall have all of the
powers and shall perform the duties of the Board of Managers until,
one year after the date hereof, unless all units in this regime are
leased or sold prior to the end of such year at which earlier time
Declarant shall have the option to cease being such Managing Agent.
Declarant will receive no compensation for serving as Managing
:Agent.. Subsequent to one year after the date hereof, or sub8equent
to the lease or sale of all units in this regime, whichever comes
first. in time, the Board of Managers may employ for the Association
a Managing Agent at a compensation to be established by the Board
to perform such duties and services as the Board shall authorize,
including, but not limited to, the duties listed in paragraph 3 of
this Article, but such subsequently employed Managing Agent may not
-be Declarant unless Declarant is to serve without compensation.
5. Election and Term of Office. At the first annual
meeting of the Association the term of office of one Manager shall
be fixed for three.years. The term of office of one Manager shall
be fixed at two years, and the term of office of one Manager shall
be fixed at one year. At the expiration of the initial term of
office of each respective Manager - his successor shall be elected
.to serve a term of three years. The three persons acting as Managers
shall hold office until their successors have been elected and hold
their first meeting.
6. Vacancies. Vacancies on the Board of Managers caused
by any reason other than the removal of a Manager by a vote of the
Association shall be filled by vote of the maj-ority of the remaining
Managers, even though they may constitute less than a quorum, and
each person so elected shall be a Manager until a successor is
elected at the next annual meeting of the Association.
7. .Removal of Managers. At any regular or special meeting
_.duly called, any one or more of the Managers may be removed with or
..without cause by a majority of the owners, and a successor.may then
and there be elected to fill the vacancy thus created. Any Manager
whose .removal has been proposed by the owners shall be given an
opportunity to be heard at the meeting.
8. Organization Meeting. The first meeting of ane wly elected
Board of Managers shall be held within ten days of election at such
place as shall'be fixed by the Managers at the meeting at which such
Managers were elected, and no notice shall be necessary to the newly
elected Managers in order legally to constitute such
-
meeting, providing
a majority of the whole Board shall be present.
9. Regular Meetings. Regular meetings of the Board of Managers
may be held at such time and place as shall be determined from time
to time, by a majority of the Managers,"'but at least four such meetings
shall be held during each fiscal year. Notice of regular meetings
of the Board of Managers shall be given to each Manager, personally
or by mail, telephone or telegraph, at least three days prior to
the. day named for such meeting.
10. Special Meeting. Special meetings of the Board of
-.Managers may be called by the President on three days' notice to each
Manager, given personally, or by mail, telephone or telegraph, which
notice shall: state the time, place (as hereinabove provided) and
purpose of the meeting. Special meetings of the Board of Managers
shall'be called by the President or Secretary in like manner and on
like.notice on the written request of at least two Managers.
.. -4-
I I '1 .1;.,
11. Waiver of Notice. Before or at any meeting of the Board
of Managers, any Manager may, in writing, waive notice of such meeting
and such waiver shall be deemed equivalent to the giving...of such notice.
Attendance by a Manager at any meeting of the Board shall be a waiver
of notice by him of the time and place thereof. If all Managers are
present at any meeting of the Board, no notice shall be required
and any business may be transacted at such meeting.
12. Board of Managers' Quorum. At all meetings of the Board
of Managers, a majority of the Managers shall constitute a quorum for
the transaction of business, and the acts of the majority of the
Managers present at a meeting at which a quorum is present shall be
the acts of the Board of Managers. If, at any meeting of the Board
of Managers, there be less than a quorum present, the majority of those
present may adjourn the meeting from time to time. At any such adjourned
meeting, any business which might have been transacted at the meeting
as originally called may be transacted without further notice.
13. Fidelity Bonds. The Board of Managers may require that all
officers and employees of the Association handling or responsible for
Association funds shall furnish adequate fidelity bonds. 'The premiums
on such bonds shall be paid by the Association.
ARTICLE V.
OFFICERS
1. Designation. The officers of the Association shall be a
President, a Secretary, and a Treasurer, all of whom shall be elected
by and from the Board of Managers.
2. Election of Officers. The officers of the Association
shall be elected annually by the Board of Managers at the organization
meeting of each new Board and shall hold office at the pleasure of the
Board.
3. Removal of Officers. Upon an affirmative vote of a majority
of the members of the Board of Managers, any officer may be removed,
either with or without cause, and his successor elected at any regular
meeting of the Board of Managers, or at any special meeting of the
Board called for such purpose.
4. President. The President shall be the chief executive
officer of the Association. He shall preside at all meetings of
the Association and of the Board of Managers. He shall have all of
the general powers and duties which are usually vestedin the office
of President of an association, including, but not limited to,the
power to appoint committeesfrom among the owners from time to time
as he may in his discretion decide is appropriate to assist in the
conduct of the affairs of the Association.
5. Secretary. The Secretary shall keep all the -minutes
of all meetings of the Board of Managers and theminutes of all
meetings of the Association; he shall have charge of such books and
papers as the Board of Managers may direct; and he shall, in general,
perform all the.duties incident to the office of Secretary.
The Secretary shall compile and keep up to date at the principal
office of the Association a complete list of members and their last
known addresses as shown on the records of the Association. Such
list shall also show opposite each member's name the number or other
appropriate designation of the apartment unit owned by such members
and the garage or parking space and storage space assigned for use
in connection with such apartment unit. Such list shall be open to
inspection by members and other persons lawfully entitled to inspect
the same at reasonable time during regular business hours.
6. Treasurer. The Treasurer shall have responsibility for
Association funds and shall be responsible for keeping full and accu-
rate accounts'of all receipts and disbursements in books belonging to
the Association. He shall be responsible for the deposit of all monies
and other valuable effects .In the name, and to the credit, of the
Association in such depositaries as may from time to time be designated
by the Board.af'Managers.
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6A A, � 1). _163
ARTICLE VI.
INDEMNIFICATION OF OFFICERS AND MANAGERS
The Association shall indemnify every Manager or officer,
his heirs, executors and administrators, against all loss, costs
and expense, including counsel fees, reasonably incurred by him in
connection with any action, suit or proceeding to which he may
be made a party by reason of his being or having been a Manager
or officer of the Association, except as to matters as to which
he shall be finally adjudged in such action, suit or proceeding
to be liable for gross negligence or willful misconduct. In the
event of a settlement, indemnification shall be provided only in
connection with such matters covered by the settlement as to which
the Association is advised by counsel that the person to be indemnified
has not been guilty of gross negligence or willful misconduct in the
performance of his duty as such Manager or officer in relation to
the matter involved. The foregoing rights shall not be exclusive of
other rights to which such Manager or officer may be entitled. All
liability, loss, damage, costs and expense incurred or suffered by
the Association by reason or arising out of or in connection with
the foregoing indemnif-LIcation provisions shall be treated and handled
by the Association as Common expenses; provided, however, that
nothing in this Article VI contained shall be deemed to obligate
the Association to indemnify any member or owner of a condominium
unit, who is or has been a Manager or officer of the Association'
with respect to any duties or obligations assumed or liabilities
incurred by him under and by--virtue.of the foregoing Declaration as
a member or owner of a condominium unit covered.thereby.
ARTICLE VII.
OBLIGATIONS OF THE OWNERS
1. Assessments. All owners, upon completion of the purchase
'thereof, or occupancy by such owner or tenant, whichever occurs
first, shall be obligated to pay the monthly assessments imposed by
the Association to meet the common expenses. The assessments shall be
made prorata according to percentage interest in and to the general
common elements and shall be due monthly in advance. A member shall
be deemed to be in good standing and entitled to vote at any annual or
a special meeting of members, within the meaning of these By -Laws,
if and only if he shall have fully paid all assessments made or levied
against him and the condominium unit owned by him.
2. Maintenance and Repair.
a Every owner must perform promptly at his own expense
all maintenance and repair work within his own apartment unit, which
if omitted would affect the project in its entirety, or in a part belong-
ing to other owners.
(b) All the repairs of internal installations of each unit
such as water, light, gas power, sewage, telephone, air conditioners,
sanitary installations, electrical fixtures and all other accessories,
equipment and fixtures belonging to the unit area shall be at the
expense of each unit's owner. External installations of each unit
such as electric lines, wires, conduits or systems and heating and
air conditioning systems shall be maintained by the owner of the unit
exclusively served by same. An owner shall also maintain all the
plumbing serving exclusively his apartment unit, and maintenance of
sewer lines serving more than one apartment unit and running from
the end of an apartment unit's single sewer line to the point where
such sewer.:.linebecomes the property of the City of Beaumont, shall
be "common expenses".
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(c) Damage to exterior doors and windows shall be repaired.
by and at the expense.of the owner, provided, however, if such damage,
or loss is covered by insurance, such owner shall be entitled to re-
imbursement to the extent of the insurance payment. Replacement or
repair of exterior doors or windows required because of ordinary wear
and tear and deterioration shall be paid for out of the assessments
levied and collected by the Board of Managers.
(d) An owner shall be obligated to reimburse the Association
promptly upon receipt of its statement for any expenditures incurred
by it in repairing or replaing any general or limited common element
damaged by his negligence or by the negligence of his tenants or agents.
3. Mechanic's Lien. Each owner agrees to indemnify and to
hold each of the other owners harmless from any and all claims of
Mechanic's Lien filed agaist other apartment units and the appurtenant
generalcommon elements for labor, materials, services or other products
incorporated in the owner's apartment unit. In the event suit for
...foreclosure is commenced, then within ninety.days thereafter such owner
shall -be required to deposit with the Association cash or negotiable
securities equal to the amount of such claim, plus interest for one
year, together with the sum of One Hundred Dollars. Such sum or
securities shall be held by the Association pending final adjudication
or settlement of the litigation. Disbursements of such funds or pro-
ceeds shall be made to insure payment of or on,account of such final
judgment or settlement. Any dificiency shall be paid forthwith by the.
subject owner, and his failure to so pay shall entitle ,the Association
to make such payment, and the amount thereof shall -be a debt of the
owner and a lien -against his condominium unit, which may be foreclosed.
as'is.provided in paragraph 24 of the Declaration.
4. General.
a Each owner shall comply strictly with the provisions
of the foregoing Condominium Declaration.
(b) Each owner shall always endeavor to observe and promote
the cooperative purposes for the accomplishment of which the project
covered by the foregoing Declaration was built.
5e Use of Units - Internal Changes.
a All units shall be utilized for single family residential,
purposes only and no unit shall be occupied other than on a temporary
basis by more than two persons per bedroom and the occupancy by more than
such number continuing for a period of ten days shall be deemed for
this purpose to constitute permanent occupancy.
(b) An owner shall not make structural modifications or
alterations to his unit,or installations located therein, without
previously notifying the Association in writing through the Managing
Agent, or if no Managing Agent is employed, then through the President
-of the Board of Managers. The Association shall have the obligation
..to answer within five days after such notice, and failure.to do so
..,within the stipulated time shall mean there in nb objection to the
proposed modification or alteration..
.(c) An owner, however, with the approval of design thereof
by the Board of Managers may install awnings.: or covers over the Patio -
area assigned to,'his unit, with the cost of installation and the
maintenance thereof to be borne by such owner.
6. Use of General Common Elements and Limited Common Elements.
Each owner may use the general common elements and the limited common.,
elements in accordance with the purpose for which they were intended
without hindering or encroaching upon the lawful rights of the'6ther
owners.
Ri ht of Entry.
a An owner shall grant the right of entry to the Managing
Agent, or to any other person authorized by the Board of Managers, in
case. of any emergency originating in or threatening his unit, whether
the owner is present at the time or not.
(b) An owner .shall permit other owners, or their representa-
tives, when so required, to enter his unit for the purpose of perform-
ing installations, alterations or repairs to the mechanical or electri-*
cal.serviaes., provided that requests for entry are made in advance and
that, such. entry, is at a -time convenient to the owner. In case of
an emergency, such right of entry shall be immediate.
8. Rules and Regulations.
a All owners shall promptly and completely comply with
each of the rules and regulations herein contained or hereafter
properly adopted for the utilization of any recreational facilities
that may be afforded. All owners and their guests shall achieve
maximum utilization of such facilities consonant with the rights of
each.of the other owners thereto.
(b) Nothing shall be done in any residential unit, nor
shall' same be occupied or used for any purpose, nor shall any commod-
ifty, product or personal property be kept therein or thereon, which
shall cause such improvements to be uninsurable against loss by fire,
or the perils included in an extended coverage endorsement under the
rules of the State of Texas Insurance Commission, or which might cause
or warrant any policy or policies covering said premises to be cancelled
or suspended by the issuing Company.
(c) Owners and occupants of units shall at all times
exercise extreme care to avoid making or permitting to be made loud
or objectionable noises, and in using or playing or permitting to be
used'or played musical instruments, radios, phonographs, television
sets,: amplifiers, and any other instruments or devices in such manner
as may disturb or tend to disturb owners, tenants, or other occupants
of condominium units in the condominium regime established by the
foregoing Declaration. No unit shall be used or occupied in such man-
ner as to.obstruct or interfere with the enjoyment of occupants or
other residents of adjoining units, nor shall any nuisance, or immoral
or illegal activfty be committed or permitted to occur in or on any
unit or upon any part of the common elements of the condominium regime
established by the foregoing Declaration..
(d) The common area is intended for use for the purpose of
affording -vehicular and pedestrian movement within the condominium,
and of providing access to the units; those portions thereof adapted
therefor, for recreational use by the owners and occupants of units;
and all thereof for the beautification of the condominium and for
providing privacy for the residents. thereof through landscaping and
such other means as shall be deemed appropriate. No part of the com-
mon.area shall be obstructed so as to interfere with its use for the
purposes hereinabove recited, nor shall any part of the common area
(common elements) be used for general storage purposes after the com-
pletion of the construction of the units by developer, nor anything
done theron in any manner which shall increase the rate-for.hazard
and liability insurance covering said area and improvements situated
thereon.` Not more than two small dogs,.cats, or other usual small
household pets may be kept in any unit, provided always that such
household pets shall be allowed on the common areas only as may be
specified under reasonable rules therefor promulgated by the Board
:of Managers. Except as hereinabove stated, no animal, livestock,
birds or poultry shall be brought within..the condominium or kept in
or around any unit thereof.
(e) No resident of the condominium shall post any advertise-
ments, signs, or posters, of any kind in or on the project except as
authorized by the Association.
(f) 'Garages may not be converted into living areas such as
den or play rooms and they shall be used only for normal garage purposes...
Garages and storage areas shall at all times be kept free of an
unreasonable accumulation of debris or rubbish of any kind. Garage
doors shall be opened only when passing through the garage entrances
and they shall be closed when such.passing through has been completed.
. Nothing will be Put in the garage
which
will
imP
ed
e th
e closing of
garage doors
' (g) Parking of automobiles or other vehicles shall be only
in the spades designated as parking space for each unit. Owners shall
not park.'a.vehicle in front of an apartment other than their own for
. r
an unreasonable length of time. No unattended automobiles or other
vehicles shall at any time be left in the alleyways'or driveways or
streets in such manner,as to impede the passage of traffic. or to impair -
proper access to parking areas. No boats, trailers, camping. trailers,
mobile homes, motor homes, or similar vehicles shall be parked, placed
or -stored in or on the yards or streets or driveways in. `front of or on
the sides of the units on a "Permanent Basis", which shall be taken
to -mean for any period or periods in excess of forty-eight (48) con-
secutive hours..
(h) No owner, resident, or lessee shall install wiring for
electrical or telephone installation, television antennae, machines
orair conditioning units or any other devices whatsoever on the
exterior of the project or that protrude through the walls or out
,of the windows, or on the roof of the project save as are expressly
in writing previously approved by the Association.
(i) No owner or other occupant of any condominium unit shall
make'any alteration or improvement to the common elements of the
condominium or remove any planting, structure, furnishings`or other
equipment or object.therefrom except with the written consent of the
Association.
9.. Destruction or Obsolescence. Each owner shall, upon
...becoming an owner of a condominium unit, execute a power of attorney in
favor of the Association, irrevocably appointing the Assocition his
.:attorney-in-fact to deal with the owner's condominium unit upon -its
destruction or obsolescence as is provided in paragraph'30.of the
_,fore going Condominium Declaration.
ARTICLE VIII
AMENDMENTS TO PLAN OF APARTMENT OWNERSHIP
L BY -Law . These By -Laws may be amende d'by the Association
at a ftly constituted meeting for such purpose, and no amendment.shall
take effect unless approved by owners representing at least 70% of
the aggregage interest of the undivided ownership of the general
;common.elements.
ARTICLE IX
MORTGAGES
1. Notice of Association. An owner who mortgages his unit
shall notify the Association through the Managing Agent, if any, or the.
President of.the Board of Managers, giving the name and address of
his mortgagee. The Association shall maintain such information in
a book entitled "Mortgagees of Units".
.2'. Notice of Default. The Association shall give to the holder
:.of each first mortgage of a unit written notification of any default
by the mortgagor of such unit in the performance of such mortgagor's r
`:obligations under these By -Laws and said condominium Declaration which
is not cured within 60 days and the holder of each such
mortgage shall
be entitled led to.receive such written
notification. The Association
cat
ion
shall
allow all first mortgagees of a unit to examine its books and
records or the condominium project. The Association shall give Federal
;Home:Loan Mortgage Corporation notice (care of the Servicer at the
Servicer's address) in writing of any loss to, or taking of, the com
mon ,elements -of the Condominium project -if such loss or taking exceeds
$10,00.0.00, and of any damage to a condominium unit.covered by..a
z.mortgage•purchased,in whole or in part by Federal Home Loan Mortgage
Corporation which exceeds $1,000.00.
ARTICLE X
COMPLIANCE
These By -Laws are set forth to comply with the requirements of
the State of.Texas Condominium Ownership Act. If any of these By -
Laws' conflict with the provisions of said statute, it is hereby
agreed and accepted that the provisions of the Statute will apply.
-:,Thi * s'Association is -not -organized for profit-. No member,
member•othe Board•of Managers or person from whom the Association
.. i. . 5
may receive any property or funds shall receive or shall be lawfully
entitled to receive any pecuniary profit from the operation thereof,
and in no event shall any part of the funds or assets of the Association
be paid as salary or compensation to, or distributed to, or inure to
the benefit of any member of the Board of Managers; provided, however,
always (1) that reasonable compenstion may be paid to any member other
than Declarant, H. G. Nichols, Sr., H. G. Nichols, Jr., or Reed Nichols
while acting as an.agent or emplpyee of the Association for services
rendered in effecting one or more of the purposes of the Association,
and (2) that any member of the Board of Managers may, from time to
time, be reimbursed for.his actual and reasonable expenses incurred
in connection with the administration of the affairs of the.Associationi'
ARTICLE XII.
The Registered office and the principal office for the transaction
of business of this Association shall be 3679 .Calder Ave., Beaumont,
;.Texas, and the Resgistered Agent shall b e.H..G. Nichols at the same
address.
';
CONDOMINIUM DECLARATION
FOR
MARSHALL PLACE TOWNHOUSES
SECTION FIVE
KNOW.ALL MEN BY THESE PRESENTS:
THAT WHEREAS, Nichols Company, a.p.artnership, hereinafter
called "Declarant " is the owner of real property situated in the
County of Jefferson, State of Texas, being described as follows:
ITEM ONE
Lot Seven (7) in Block Four (4) of the MARSHALL PLACE,
UNIT II, ADDITION to the City of Beaumont, Jefferson
County, Texas, as p.er.map or plat thereof of record in
the office of the County Clerk of Jefferson County,
Texas, reference to which is hereby made for all
purposes.
ITEM TWO
A perpetual easement on, over and across the East 14 feet
(E. 141) of Lot Six (6) in Block Four (4) of the MARSHALL
PLACE, UNIT II, ADDITION to the City of Beaumont, Jef-.
Person County, Texas, as per map or plat thereof of
record in the office of the County Clerk .of Jefferson
County, Texas, reference to which is hereby made for
all purposes.
This Item Two -is for the purpose of providing drainage
for and access to said Item One and shall carry.with
it the right to build and maintain drainage facilities
and a paved private street on, over and across same.
This Item Two is an exclusive easement, with the
exception that the owner of said Lot Six (6) in Block
Four (4) of the MARSHALL PLACE, UNIT II, ADDITION.,
whether such owner be the -present owner.thereof, or any;
future owner or owners thereof, shall have the right
to use such easement for the same purposes in connection
with and for said Lot Six (6) in Block Four (4) of the
MARSHALL PLACE, UNIT II, ADDITION. 'This Item Two is
hereby severed from the fee to the land covered by such
easement and made an appurtenance to said Item One.
Note: Item One is subject to a perpetual easement ori;
over and across the portion thereof described as follows:
The West 14 feet (W. 141) of Lot Seven Min Block Four
(4) of the MARSHALL PLACE, UNIT II ADDITION to the
City of Beaumont, Jefferson County, Texas, as per map or
palt thereof of record in the office of the County Clerk
of Jefferson County, Texas, reference- to which is hereby
made ;for all purposes.
t T A
This easement is for the purpose of providing access
to Lot Six (6) in Block Four (4) of the MARSHALL PLACE
-UNIT II, ADDITION to the City of Beaumont, Jefferson
County, Texas, as per map or plat thereof of record in
the office of the County Clerk of Jefferson County,
Texas, reference to which is hereby made for all
purposes, and for and to.the owner or owners thereof,
whether present or future, and shall carry with it the
right to build and maintain drainage facilities and a
paved private street on, over and across same;
which property is described and depicted on the Map or Plat -.thereof
prepared by Schaumburg & Polk, Inc., dated ............ * ' * ,
marked MARSHALL PLACE TOWNHOUSES, SECION FIVE, EXHITBRI-777-7 which
by this reference is made a part hereof; and
WHEREAS, Declarant, as Developer, desires to establish a
condominium regime under the Condominiun Act of the State of Texas;
and
WHEREAS, Declarant.has executed plans for the construction
of Two (2) two-story buildings and One (1) One-story building
and other improvements.appurtenant thereto,on the property described
in said Exhibit "A", which when completed shall consist of Nineteen
(19) separately designated condominium units; and
WHEREAS, Declarant does hereby establish a plan for
...theindividual ownership in fee simple of estates consisting of the
area or space contained in each'of the apartment units in the Three
(3) building improvements and the ownership by the individual and
.separate owners thereof, as tenants in common of.all of the remaining
=,property which is hereinafter defined and referred.to as, the general
common elements,.
-2-
Y
(0�� l�r7r1
1. DEFINITIONS, unless the context shall expressly provide other-
wise.
(a) "Apartment" or "Apartment Unit" means an individual air
space unit which is contained within the perimeter walls, floors
and ceilings of a building as shown on said map.
(b) "Condominium Unit" means one individual air space
unit, together with the interest in the general common elements
appurtenant to such unit.
(c) "Owner" means a person, firm, corporation, partnership,
association or other legal entity, or any combination thereof, who
owns one or more condominium units.
(d) "Majority of Unit Owners" means the apartment owners with
51%'or more of the votes weighed so as to coincide with percentages
assigned in this declaration.
,(e) "General Common Elements" means and includes:
(1) The land on which the buildings are located;
(2) The foundation, columns, girders, beams, supports,
main walls and roofs;
(3) The common green areas, yards, gardens, parking
area, fences, storage spaces, private streets,
private service drives., walks and service easements;
(�I) The installations consisting of the equipment
and materials making up central services such
as power, light, gas and the like;
(5) All other parts of the property necessary or
convenient to its existence, maintenance and
safety, or normally in common use.
(f) "Limited Common Elements" means a part of the general
common elements reserved for the exclusive use of the owner of a
condominium unit; the heating and air conditioning systems serving
one condominium unit only and garage parking areas and patio areas
indicated on map as appurtenant limited elements to a specific
unit only shall be deemed limited common elements.'
(g) "Entire.premises" or "property" means and includes the
land, the building, all improvements and structures thereon, and all
rights, easements and appurtenances belonging thereto.
(h) "Common expenses" means and includes:
(1) All sums lawfully assessed against the general
common elements by the Managing Agent or Board
of Managers;
(2) Expenses of administration and management, maintenance
repair or replacement of the general common elements;
(3) Expenses agreed upon as common expenses by the owners;
(4) Expenses declared common expenses by provisions of
this Declaration -and by the By -Laws;
(5) Special assessements for capitol -improvements to, and
extraordinary maintenance and repair of, all private
streets within the entire premises;
(6) A monthly assessment for each owner's pro -rata share
of the monthly utilities which may be metered or sold
to the condominium regime as a unit;
(7). Special assessments for ordinary maintenance and
repair, as well as special assessments for extraordi-
nary maintenance and repair, as well as capital
improvements for, all sewage,collection systems and
water lines shared in common by, and servicing in
common, all owners within the condominium regime which
are not dedicated to, and accepted by, the City of
Beaumont and which are in easements so dedicated and
4ccepted.
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(i) "Association of Unit Owners" or "Association" means a
Texas Non-profit association, the By=Laws of which shall govern
the administration of this condominium property, and which shall have
the obligation to reasonably maintain and repair private streets
and sewage collection systems and water lines shared in common by
all of the owenrs of the condominium units, the members of which
shall be all of the owners of the condominium units.
(j) "Map", "Survey Map", or "Plans" means and includes the
engineering survey of the land locating thereon all of the improve-
ments, the floor and elevation plans and any other drawings or
diagrammatic plan depicting a part of or all of theimprovements,
same being herewith filed, consisting of one (1) sheet labeled
Exhibit "A", and incorporated herein.
2. The map shall be filed for record simultaneously with the
recording of this Declaration as a part hereof, and prior to the
first conveyance of any condominium unit. Such map shall consist of
and set forth (1) the legal description of the surface of the land;
(2) the linear measurements and locations, with reference to the!
exterior boundaries of the land, of the buildings and all other
improvements built or to be built on said land by Declarant;and
(3) floor plans and elevation plans of the buildings built or to
be built thereon showing the location, the building designation,
the apartment designation and the linear dimensions of each apartment
unit, and -the limited common elements.
3. The real property is hereby divided in the following
separate fee simple estates:
(A) Nineteen (19) fee simple estates consisting of Nineteen
(19) separately designated apartment units, each such.unit identified
by number and by building symbol or disignation on the map, the apart-
ments in each building being described as follows:
BUILDING A - Containing Five apartments, numbered Units
1, 2, 32 4, and 5, the size, dimensions, location and
boundaries of each being detailed on the survey plat
herewith filed marked Exhibit "A".
BUILDING B - Containing Seven apartments, numbered Units
6, 7, 8, 9, 10, 11, and 12, the size, dimensions, location
and boundaries of each bieng detailed on the survey plat
herewith filed marked Exhibit "A".
BUILDING C - Containing Seven apartments numbered Units
13, 14, 15, 16, 17, 18 and 19, the size, dimensions,
location and boundaries of each being detailed on the survey
plat herewith filed marked..Exhibit "A".
(B) The remaining portion of the entire premises, referred
to as the general common elements, which shall be held in common by the.
owners, the interest of each therein being hereinafter set forth
and each undivided interest being appurtenant to one of the Nineteen
(19) apartment units.
(C) The percentage of ownership in the common elements allocated
to each apartment is as follows:
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It I X1117 10 S_
Unit
Building Percentage of
Number
Designation 'Owriershi
1
A
2
A
3
A
A
5
A
6
B
7
B
8
B
9
B
10
B
11
B
12
B
13
C
14
C
15
C
16
C
17
C
18
C
19
C
4. A portion of the general common elements is set aside and
reserved for the exclusive use of individual owners, such areas
being the limited common elements. The limited common elements
reserved for the exclusive use of the individual owners are the
automobile parking spaces, storage spaces and patio spaces, which
are shown on the map. Such spaces are allocated and assigned by the
Declarant to the respective condominium units as indicated on said
Exhibit "A", the patios assigned to each apartment unit being desig-
nated by the apartment unit number preceded by the letter "P" and in
a like manner the garage assigned to each apartment unit being desig-
nated by the apartment unit number preceded by the letter "G". In
like manner, heating and air conditioning systems seving only one
condominium unit shall be limited common elements. Such limited
common elements shall be used in connection with the particular
apartment unit, to the exclusion of tl e use thereof by the .other
owners except -by invitation.
5. Each apartment and its undivided interest in and to the
general common elements appurtenant thereto shall be inseparable and
may be conveyed, leased or encumbered -only as a condominium unit.
6. Every deed, lease, mortgage, trust deed or other instrument
may legally describe a condominium unit by its identifying apartment
number and building symbol or designation as shown on the map, followed
by the words, "MARSHALL PLACE TOWNHOUSES, SECTION FIVE and by reference
to this recorded Declaration and Map. Every such description shall
be deemed good and sufficient for all purposes to convey, transfer,
encumber or otherwise affect the general common elements.
7. Declarant shall give written notice to the tax assessors of
the creation of condominium ownership of this property, as is provided
by law, so that each apartment unit and its percentage of undivided
interest in the general common elements shall be deemed a separate
parcel and subject to separate assessment and taxation.
8. A condominium unit may be held and owned
personas joint tenants, or as tenants in common,
property tenancy relationship recognized.under the
of Texas.
-5-
by more. than one
or in any real
laws of the State
f, l6-�-L9��
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r
9. The general common elements shall be owned in common by all
of the owners of the apartment units and shall remain undivided and
no owner shall bring any action for partition or division of the
general common elements. Nothing contained herein shall be construed
as a limitation of the right of partition of a condominium unit between
the owners thereof, but such partition shall not affect any other
condominium unit.
10. Each owner shall be entitled to exclusive ownership and posses-
sion of his apartment. Each owner may use the general common elements
in accordance with the purpose for which they are intended, with-
out hindering or encroaching upon the lawful rights of the other
owners.
11. Each apartment shall be occupied and used by the owner only
as and for a single family residential dwelling for the owner, his
family, his social guests or his tenants.
12. If any portion of the general common elements encroaches
upon an apartment unit.or units, a valid easement for the encroachment
and for the maintenance of same, so long as it stands, shall and does
exist. If any portion of an adjoining apartment unit or units encroaches
upon any portion of the general common elements, a valid easement
for the encroachment and for the maintenance of same, so long as it
stands, shall and does exist. For title or other purposes, such
encroachment(s) and easement(s) shall not be considered or determined
to be encumbrances either on the general common elements or the apart-
ment units.
13. Subsequent to the completion of the improvements described
on the map, no labor performed or materials furnished and incorporated
in an apartment unit with the consent or at the request of the owner
thereof, or his agent or his contractor, or subcontractor, shall be
the basis for filing of a lien against the general common elements
owned by such other owners. Each owner shall indemnify and hold
harmless each of the other owners from and against all liability
arising from the claim of any lien against the apartment unit of any
other owner, or against the general common elements for construction
performed, or for labor, materials, services or other products in-
corporated in the owner's apartment unit at such owner's request.
14. The -administration of this condominium property shall be
governed by By -Laws of the non-profit association, hereinafter named
and hereinafter referred to as the "Association." A copy of such
"By -Laws" is hereto attached in Exhibit '.B hereof, which Exhibit B is
incorporated herein by reference; and shall be deemed adopted by
Declarant as sole owner of the property herein described, and all
owners shall be bound thereby. Declarant may, at its election,
cuase to be formed a Texas non-profit corporation bearing said name,
in which event such non-profit corporation shall be composed of
owners of condominium units as herein set out, and such non-profit
corporation shall thereafter act and do things to be done by
"Association," and the said non-profit corporation, if formed, shall
be bound by, adopt and observe as its By -Laws, the said By -Laws hereto
attached. "Association" as here used shall refer to the member owners
as a group, both before and after incorporation.. In the event of
incorporation, a certified copy of the Certificate of Incorporation
of such "Association" shall be recorded and which shall provide that
three persons shall act as a Board of Managers and shall serve as the
Managers until their successors have been elected and qualified. An
owner of a condominium unit, upon becoming an owner, shall be a mem-
ber of the "Association" and shall remain a member for the period of
his ownership. The Managing Agent shall be Declarant or whatever
person or entity to whom Declarant for purposes of resale may convey
all its apartment units in this regime which at the time of such
conveyance it has not sold to owner occupants, and the Managing Agent
shall perform all of the duties of the Board of Managers until one
year after the execution hereof, unless all of the units in this.
regime are leased or sold prior to the end of such year at which
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&-U, '7 "7 - Z -6:5-
16 -
earlier time Declarant shall have the option to cease being such
Managing Agent.
15. The owners shall have the irrevocable right, to be exercised
by the Managing Agent-, or Board of Managers of the Association, to
have access to each apartment unit from time to time during reasonable
hours as may be necessary for the maintenance, repair or replacement
of any of the general common elements therein or accessible therefrom,
or for making.emergency repairs therein necessary to prevent damage
to the general or limited common elements or to another apartment
unit or units.
16. An owner shall maintain and keep in repair the interior of
his own apartment, including the fixtures thereon. An owner shall
also maintain all electric lines, wires, conduits or systems and the
heating and air conditioning system serving his apartment unit,
whether within or without same. An owner shall also maintain all the
plumbing serving his apartment unit, and maintenance of sewer lines
serving more than one apartment unit and running from the end of
an apartment unit's single sewer line'�to the point where such sewer
line becomes the property of the City of Beaumont shall be "common
expenses". .
17. An owner shall do no act nor any work that will impair the
structural soundness or integrity of the building or impair any ease-
ment or hereditament. No owner shall in any way alter, modify, add
to or otherwise perform any work whatever upon any of the common
elements, save with written consent of the Board of Managers first
obtained.
18. An owner shall not be deemed to own the undecorated and/or
unfinished surfaces of the perimeter walls, ground floor and roof
surrounding his apartment unit, nor shall such owner be deemed to
own the utilities running through his apartment unit which are utilized
for or serve more than one apartment unit, except as a tenant in common.
An owner, however, shall be deemed to own and shall maintain the inner
decorated and/or finished surfaces of the perimeter and interior walls,
floors, ceilings, doors, windows and such other elements consisting
of paint, wall paper and other such finishing materials.
19. Each owner shall comply strictly with the provisions of this
Declaration, the By -Laws and the decisions and resolutions of the
"Association" adopted pursuant thereto as the same may be lawfully
amended from time to time. Failure to comply with any of the same
shall be grounds for an action to recover sums due for damages or'
injunctive.relief or both, maintainable by the Managing Agent or
Board of Managers on behalf of the owners or, in a proper case, by
an aggrieved owner.
20. This Declaration shall not be revoked, nor shall any of the
provisions herein be amended unless all of the owners of Condominium
Units, and all of theholders of any recorded mortgages or Deeds of
Trust covering or affecting any or all condominium units unanimously
consent and agree to such revocation or amendments by instrument(s)
duly recorded.
21. The assessments made shall be based upon the cash requirements
deemed to be such aggregate sum as the Managing Agent or Board
of Managers of the Association shall from time to time determine
is to be paid by all of the owners, including Declarant, to provide
for the payment of all estimated "..common"expenses". as that phrase is
defined above growing out of or connected with the maintenance and
the operation of thegeneral common elements, which sum may include,
among other things, cost of management, taxes, assessments, insurance
contracts purchased pursuant to the terms hereof insuring the buildings
and the owners thereof and their mortgagees against such risks as
may be insured against under the terms hereof, landscaping and care
of grounds, common lighting, repairs, and renovations, garbage collections,
wages, water charges, legal and accounting fees, management fees,
-7-
expenses and liabilities incurred by the Managing Agent or Board of
Managers under or by reason of this Declaration, the payment of any
deficit remaining from a previous period, the creation of a reasonable
contingency or other reserve or surplus funds as well as other
costs and expenses relating to the general common elements. The
omission or failure of the Board to fix the assessment for any month
shall not be deemed a waiver, modification or a release of the owners
from the obligation to pay.
The Managing.Agent or Board of Managers shall obtain and maintain
insurance of the type and kind required by a majority of the unit owners,
issued by a responsible insurance company authorized to od business
in the State of Texas or by more than one responsible insurance
company authorized to do business in the State of Texas should the
same not be available for purchase from one such company and such
insurance may be written in the name of the Managing Agent or in the
name of the Board of Managers, as Trustee or Trustees for each apart-
ment owner and each apartment owner's mortgagee, if any, or it may be
written in such other names as a majority'of the unit owners may direct.
Such insurance shall not prejudice the rights of each owner to insure
his apartment on his own account and for his own benefit. The "Asso-
ciation" may also be named in such insurance policy or policies as
insureds if required by the insuring company or companies. Such
insurance shall provide for a standard, non-contributory mortgagee
clause in favor of each first mortgagee. It shall also provide that
it cannot be cancelled by either the insured or the insurance company
until after ten days prior written notice to each first mortgagee.
Said Managing Agent or Board of Managers shall, upon request of any
first mortgagee, furnish a certified copy of such policy and the
separate certificate identifying the interest of the mortgagor. All
policies of insurance shall provide that the insurance thereunder
shall be invalidated or suspended only in respect to the interest of
any particular owner guilty of a breach of warranty, act, omission,
negligence.or non-compliance of any provision of such policy, including
payment of the insurance premium applicable to that owner's interest,
or who permits or fails to prevent the happening of any event, whether
occurring before or after a loss, which under the provisions of such
policy would otherwise invalidate or suspend the entire policy, but
the insurance under such policy, as to the interests of all other
insured owners not guilty of any such act or omission, shall not be
invalidated or suspended and shall remain in full force and effect.
Determination of maximum replacement value of all condominium units
(for insurance purposes) shall be made annually by one or more written
appraisals, copies of which shall be furnished forthwith to each mort-
gagee of a condominium unit. In addition, each owner shall be notified
of such appraisal(s).
22. All owners shall be obligated to pay the estimated assess-
ments -imposed by the Board of Mangers or Managing Agent of the Asso-
ciation to meet the common expenses and by acceptance of a deed for a
unit whether expressly stated in such deed or not, shall be deemed -
to convenant and agree to pay to the Association of Unit Owners the
assessments provided for herein. Except for insurance premiums;
the assessments shall be made basically pro rata according to each
owner's percentage interest in and to the general common elements,
but not necessarily in such exact proportion if the Board of Mangers
deem such improper or unfair. Assessments for insurance premiums
shall be based upon the proportion of the total premium(s) that the
insurance carried on a condomium unit bears to total coverage. Assess-
ments for the estimated common..expenses, including insurance, shall
be due monthly in advance on or before the fifth day.of each month.
Failure to pay by the fifteenth day of each month shall require the
imposition and assessment of a late charge of $5.00. The Managing
Agent or Board of Managers shall prepare and deliver, or mail, regu-
larly at least.every three months to each owner an itemized statement
SE
(9 �. I) ))-10 S
r
•
showing the various estimated or actual expenses for which the
assessments are made.
Declarant shall not be liable for assessments prior to the sale
or lease of all units.
Contribution for monthly assessments shall be prorated if the
ownership of a condominium unit commences on a day other than on
the first day of the month.
23. No owner may exempt himself from liability for his contri-
bution towards the common expenses by waiver of the use or enjoyment
of any of the general or common elements or by abandonment of his
apartment.
24. All sums assessed but unpaid for the share of common expenses
chargeable to any condominium unit, including interest thereon at
ten percent per annum, shall constitute a lien on such unit superior
(prior) to all other liens and encumbrances, except only for:
(a) Tax and Special assessment liens in favor of any assessing
unit., and
(b) All sums unpaid on a first mortgage or first deed of trust
of record, including all unpaid obligatory sums as may be
provided by such encumbrances, and including additional
advances made thereon prior to the arising of such a lien.
To evidence such.lien the Board of Managers or Managing Agent
may, but shall not be required to, prepare a written notice setting
forth the amount of such unpaid indebtedness, the name of the owner
of the condominium unit and a description of the condominium unit.
Such a notice shall be signed by one of the Board of Managers or
by the Managing.Agent and may be recorded in the office'of the Clerk
and Recorder of Jefferson County, Texas. Such lien for the common
expenses shall attach from the date of the failure of payment of the
assessment. -
Such lien may be enforced by foreclosure of the defulting owner's
condominium unit by the Association in like manner as a mortgage on
real property upon the recording of a notice or claim thereof. In
any such foreclosure, the.owner shall be required to pay the costs
and expenses of such.proceedings, the costs and expenses for filing
the notice or claim of lien and all reasonable attorney's fees. The
owner .shall also be required to pay to the Association a reasonable
rental for the condominium unit during the period of foreclosure,
and the Association shall be entitled to a receiver to collect the
same. The Association shall have the power to bid in the condominum
unit at foreclosure sale and to acquire and hold, lease, mortgage
and convey same.
To secure and enforce the payment of said assessments, and for the
auxiliary and cumulative enforcement of said lien hereinabove created,
Declarant has granted, sold and conveyed and by these presents does
grant, sell and convey -unto Morris Beck, Trustee, of Jefferson County,
Texas, and his substitute or successors, each of the hereinbefore
described condominium units. To have and to hold the said premises,
together with the rights, privileges and appurtenances unto the said
Trustee, and to.his substitutes or successors forever. And Declarant
does hereby bind itself, its successors and assigns, to warrant and
forever defend the said premises unto.the said Trustee, his substitutes,
successors and assigns forever, against the claim or claims of all
persons claiming or to claim the same, or any part thereof, for and
upon the following trusts, terms, covenants and agreements, to -wit:
An,A_,t, .6 5
Declarant, its successors and assigns may hereafter become justly
indebted to the Association for the hereinbefore mentioned assessments
and should Declarant, its successors and assigns do and perform all of
the covenants and agreementsherein contained and make prompt payment
of the assessments hereby secured as the same shall become due and
payable, then this conveyance shall become null and void and of no
further force and effect; but in the event of default in the payment
of any assessment hereby secured, in accordance with the terms hereof
it shall thereupon, or any time thereafter, be the duty of the Trustee,
or his successor or substitute, at the request of the Association
(which request is hereby conclusively presumed) to enforce this trust
and make sale of the condominium unit against which the assessment is
made, as provided in Article 3.810, Revised Civil Statutes of Texas
1925, after notice as provided in said Article (but without any other
notice than is required by said Article 3810), and make due conveyance
.,to the purchaser or purchasers, with general warranty binding the
Declarant, its successors and assigns; and out of the money arising
from such sale, the Trustee acting shall first pay all expenses of
advertising said sale and making the conveyance, and then to the
Association the full amount of assessments owing, interest thereon,
and reasonable attorney'.s fees, rendering the balance of the sales
price, if any, to the owner of such unit prior to such sale, his heirs
or assigns; and the recitals in the conveyance to said purchaser or
purchasers shall be full and conclusive evidence of the truth of the.
matters therein stated, and all prerequisites to said sale shall be
presumed to have been performed and such sale and conveyance shall be
conclusive -against the owner*of such unit prior to such sale, his
heirs and assigns.
In case of the absence, resignation, death, inability, failure
or refusal of the Tru3tee herein named or of any substitue Trustee
appointed hereunder to act, or in the event the Association shall
deem.'it desirable to remove without cause the Trustee or any substi-
tute 'trustee and appoint another to execute this trust, then in any
of such events the Association shall have the right and .is hereby
authorized and empowered to appoint a successor and substitute without
any formality other than an appointment and designation in writing;
and this appointment shall vest in him, as -Trustee, the estate and
title in and to'all said units and he shall thereupon hold,possess
and execute all the rights, title, powers and duties herein conferred
upon the Trustee named herein; and the right to appoint a successor
or substitute Trustee shall exist as often and whenever from any of
said cuases any Trustee, original or substitute, cannot or will not
act, or has been removed without cause. The exercise or attempted
exercise of -the power of sale herein contained shall not exhaust
said power of sale and shall not prevent any subsequent exercise
thereof.
It is especially agreed that, in the event of a foreclosure
under the powers granted herein, the person in possession of the
unit sold shall thereupon become the tenant -at -will of the purchaser
at such foreclosure sale, and should such tenant refuse.to surren-
der possession of said unit upon demand, the purchaser shall thereupon
at his or:her option, be entitled to institute and maintain the statutory
action for forcible detainer and procure a writ of possession there-
under. This possession shall in no wise preclude the purchaser from
bringing any other legal action for the possession of said unit and
the bringing of one character of action shall not preclude the other
and same may be exercised separately or simultaneously.
The amount of the common expenses
unit shall also be a debt of the owner
assessement is made. Suit to recover
common expenses shall be maintainable
the lien securing same.
-10-
assessed against each condominium
thereof at the time the
a money judgment for unpaid
without foreclosing or waiving
1 J 0
l a--4 __L 911)1�
Any encumbrancer holding a lien on a condominium unit may pay
any unpaid commonexpense payable with respect to such unit, and upon
such.payment such encumbrancer shall have'a lien on such unit for the
amounts paid of the same rank as the lien of his encumbrance.
25. Upon the written request of any owner or any encumbrancer or
prospective encumbrancer of a condominium unit, the Association,
by its Managing Agent or Board of Managers, shall issue a written
statement setting forth the unpaid common expenses, if any, with
respect to the subject unit, the amount of the current monthly
assessment and the date that such assessment becomes due, credit
for advanced payments or for prepaid items, including but not.
limited to insurance premiums, which shall be -conclusive upon the
Association in favor of all persons who rely thereon -in good faith.
Unless such request for a statement of indebtedness shall be complied
with within ten days, all unpaid common expenses which become due
prior to the date of making of such request shall be subordinate to
the lien of the person requesting such statement.
The Grantee of a unit shall be jointly and severally liable
with the Grantor for all unpaid assessments against the latter for
his proportionate share of the common expenses up to the time of
the grant or conveyance, without prejudice to the Grantee's right to
reauver from the.Grantor the amounts paid by the Grantee therefor;
provided, however, that upon written request, any such prospective
Grantee -shall be entitled to a statement from the Managing Agent or
Board of Managers, setting,"forth the amount of the unpaid assessments,
if any., with respect to the subject unit, the amount of the current
monthly assessment and the date that such assessment becomes due,
.�_redit for advance payments or for prepaid items, including but not
limited to insurance premiums, which shall be conclusive upon the
Association. Unless such request for a statementof indebtedness shall
be complied with within ten days of such request, then such Grantee
shall.not.be liable for, nor shall the unit conveyed be subject to
a lien.for, any unpaid assessments against the subject unit.
Upon the'sale or conveyance of an apartment, all assessments
against a co-owner for his prorata share in the expenses as herein
described and levied shall first be paid out of the sales price,
or by the purchaser., in preference over any other assessments or
charges of whatever nature except the following:
.(a) Assessments, liens and charges in favor of the State
and any political subdivision thereof for.taxes past due and unpaid
on the apartment; and
(b) Amounts due under first mortgage instruments duly recorded.
26. Any owner shall have the right from time to time to mortgage
or encumber his interest by deed of trust, mortgage or other security
instrument. A first mortgage shall be one which has first and para-
mount priority under applicable law. The owner of a condominium unit
may create a second mortgage on the following conditions: (1) That
any such second mortgage shall always be subordinate to all of the
terms, conditions, covenants, restrictions, uses, limitations, obli-
gations, lien for common expenses, and other payments created by this
Declaration and by the By -Laws; (2) That the mortgagee under any second
mortgage shall release, for the purpose of restoration of,any improve-
ments upon the mortgaged premises, all of his right, title and interest
in and to the proceeds under all insurance policies upon said premises,
which insurance policies were effected and placed upon.the mortgaged
premises by the Association. Such release shall be furnished forth-
with by a second mortgagee upon written request to the Association.
27. In the event any owner of a condominium unit shall wish to
sell, lease or rent the -same, and shall have received a bonafide offer.
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'6kA
19711)
therefor from a prospective purchaser or tenant, the remaining
owners shall be given written notice thereof, together with an
executed,copy of such offer and the terms thereof. Such notice
and copy shall be given to the Board of Managers for all of the
owners. The remaining owners through the Board of Managers, or
__a person named by them, shall have the right to purchase or lease
or rent the subject apartment upon the same terms and conditions as
:set forth in the offer therefor, -provided written notice of such
..election to purchase or lease is given to the selling or leasing
owner, and a matching down payment or deposit is provided to the
.selling or leasing owner during the ten-day period immediately
following the delivery of the notice of the bonafide offer and copy
thereof to purchase or lease.
In the event any owner shall attempt to sell, rent, or lease
his condominium unit without affording to the other owners the
right of.first refusal herein provided' such sale or lease shall be
wholly null and void .and .shall confer no title or interest whatsoever
upon the intended purchaser or lessee. Possession of or residence
in.a condominium unit by any other person than the record owners,
their lineal descendants or relatives of their lineal descendants,
..continuing for a.period of ten (10) days, shall be deemed, for this
purpose, to constitute a leasing or renting of the .condominium unit,
...whether or not any consideration has been paid therefor; and in such
event, the Board of Managers may require the removal of such occu-
pant(s), it being hereby agreed that the Board of Managers, in such
event, shall be entitled to the possession of the condominium unit
upon demand therefor of and from such occupant, with or without notice
to.the record owner(s) thereof; and in the event of failure to sur-
render such possession, the Board of Managers may institute and main-
tain Forcible Entry and Detainer proceedings for the possession of
such unit, and'have and retain such possession until the record owner
thereof, or his purchaser (in event of sale, all prerequisites of this
—:declaration having been complied with) retakes physical possession of
such premises. During any time when the Board of Managers shall have
,possession of such unit hereunder, the record owner and all of his
guests, licensees and invitees shall be deemed to'waive any claim for.
damages to person or property in or on the units.
The sub -leasing or sub -renting of said interest shall be subject
to the same limitations as are applicable to the leasing or renting'
thereof. The liability of the owner under these covenants shall con-
. . tinue, notwithstanding the fact that he may have leased or rented
said interest as provided herein.
In no case shall the right of first refusal reserved herein
affect the right of an owner to subject his interest in the project
parcel to a trust,deed, mortgage, or other security intrument-
-The.failure of or refusal by the Board of Managers to exercise
the.right to so purchase or lease shall not constitute or be deemed
to be a waiver of such right to purchase or lease when an owner
receives any subsequent bonafide offer from a prospective purchaser
or tenant.
The provisions of this Article 27 shall not apply to any sale
lease or rental if made by Declarant at any time hereafter whether
same be a "first sale or letting" or "resale or"reletting" of an
_.apartment unit. Declarant shall have the further right to use any
-apartment unit as office and sales area and ,display advertising
signs at the premises at any time hereafter until all units have been
sold by.Declarant.
The right of first refusal,.as provided herein, shall extend and
run from the'date of execution'of this Declaration for the period of
a
the lives of the now
of said descendants
i
living descendants of H. G. Nichols, whichever
shall live the longer, plus eighteen (18) years.
Except as is otherwise provided in paragraph 28, and except upon
a transfer of title to a Public Trustee, or to a first mortgagee,
each grantor of a condominium unit, upon transferring or conveying
his interest, shall incorporate in such instrument of conveyance .an
agreement that the grantee carry out the provisions of the "right of
first refusal as provided in this paragraph.
28. In the event of any default on the part of any owner under
any first mortgage which entitled the holder thereof to foreclose
same, any sale under such foreclosure, including delivery of a deed
to the first mortgagee 'in lieu of such foreclosure shall
be made free and clear of the provisions of paragraph 27, and the
purchaser (or grantee under such deed in lieu of foreclosure) of
such condominium unit shall be thereupon and thereafter, -subject to
the provisions of this Declaration and By -Laws. If the purchaser
following such foreclosure sale (or grantee under deed given in lieu
of such foreclosure) shall be the then holder of the first mortgage,
or its nominee, the said holder or nominee may thereafter sell and
convey the condominium'unit free and clear.of the provisions of
paragraph 27, but its grantee shall thereupon and thereafter be
subject to all of the provisions thereof.
The transfer of a deceased joint tenant's interest to the
surviving joint tenant or the transfer of a deceased's interest
to a devisee by will or his heirs at law under intestacy laws
shall not be subject to the provisions of paragraph 27.
If an owner of condominium unit can establish to the satisfaction
of the Managing Agent or Board.of Managers that a proposed transfer
is not a sale or lease, then such transfer shall not be subject to
the provisions of paragraph 27..
29. Upon written request of any prospective transferor, purchser,
tenant or an existing or prospective mortgagee of any condominium
unit, the Managing Agent or Board of Managers of the Association shall
forthwith, or where time is specified, at the end of the time, issue
a written and acknowledged certificate in recordable form, evidencing
that:
(a) With respect to a proposed lease or sale under paragraph
27, that proper notice was given by theselling or leasing owner and
that the. remaining owners did not elect to exercise their option to
purchase or lease;
(b) With respect to a deed to a first mortgagee or its nominee
in lieu of foreclosure, and a deed from such first mortgagee or
its nominee, pursuant to paragraph 28, that the deeds were in fact
given in lieu of foreclosure and were not subject to the.provisons of
pargraph 27;
r
(c) With respect to any contemplated transfer which is not in
fact a sale or lease, that the transfer is not or will not be subject
to the provisons of paragraph 27;
Such certificate shall be conclusive evidence of the facts con-
tained therein.
30. This Declaration hereby makes mandatory the irrevocable
appointment of an attorney-in-fact to deal with the property;upon
its destruction or obsolescence.
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Title to any condominium unit is declared and expressly made
subject to the terms and conditions hereof, and acceptance by any
grantee of a deed from the Declarant or from any owner shall con-
stitute appointment of the attorney-in-fact herein provided. All
of the owners irrevocably constitute and appoint the non-profit
association hereinafter named, or its successor non-profit
_.corporation, if same be hereafter organized, their true and lawful
attorney in their name, place and stead, for the purpose of dealing
with the property upon its destruction or obsolescence as is hereafter
provided. As attorney-in-fact, the Association, by its President
and Secretary, shall have full and complete authorization, right and
power to make, execute and deliver any contract, deed or any other
instrument with respect to the interest of a condominium unit owner
which are necessary and appropriate to exercise the powers herein
granted. Repair and reconstruction of the improvement(s) as used in
the succeeding subparagraphs means restoring the improvement(s) to
substantially the same conditions in which it existed prior to the
damage, with each unit and the general and limited common elements_
having the same vertical and horizontal boundaries as before. The
proceeds of any insurance collected shall be made available to the
Association. for the purpose of repair, restoration or replacements
unless.the owners and all first mortgagees agree not to rebuild in
accordance with the provisions set forth hereinafter.
(a) In the event of damage or destruction due to fire or other
disaster:, the insurance proceeds, if sufficient to reconstruct the
improvement(s) .shall be applied by the Association, as attorney-in-
-fact, to such reconstruction, and the improvement(s) shall be promtly
repair ed and reconstructed.
(b) If the insurance proceeds are insufficient to repair
and reconstruct the improvement(s), and if such damage is not more than
fifty (50%) percent. of all of the general common elements, not includ-
ing land, such damage or destruction shall be promptly repaired and
reconstructed by the Association, as attorney-in-fact, using the pro-
ceeds of insurance and the proceeds of an assessment to be made against .
all of the owners. and their condominium units. Such deficiency assess=
ment shall be a common expense made pro'rata according to each owner's
percentage interest in and to the general common elements and shall
be due and payable within thirty days after written notice thereof.
The Association shall have the authority to cause the repair or restor
ation of the improvements using all of the insurance proceeds for such
purpose notwithstanding the failure of an owner to pay the assessment.
_..The assessment provided for herein shall be a debt of each owner, and
a lien on his condominium unit and maybe enforced and collected as is
provided in paragraph 24. In addition thereto, the Association,
as attorney-in-fact, shall have the absolute right and power to sell
-the condominium unit of any owner refusing or failing to pay such
deficiency assessment within the time provided, and if not so paid,
the Ass.ociaiton shall cause to be recorded. a notice that the condominium
unit of the delinquent owner shall be sold by the Association. The
proceeds derived from the sale of such condominium unit shall be used
and disbursed by the Association, as attorney-in-fact, in the following.
order:
(1)' For payment of the balance of the lien of any first mortgage.
(2). For payment of taxes and special assessment liens in favor
of any assessing entity;
(3)_ For payment of unpaid common expenses;
(4) For payment of junior liens and encumbrances.in.the order of
and.to.the extent'of their priority; and
(5) -The balance remaining, if any, shall be paid to the
condominium unit owner.
I
(c) If more than fifty (50%) percent of all of the general
common elements, not including land, are destroyed or damaged, and
if the owners representing an aggregate ownership interest of one-
half of said condominium units, or more, do not voluntarily, within
one hundred days thereafter, make provision for reconstruction, which
plan must have the unanimous approval or consent of every first mortgagee,
the Association shall forthwith record a notice setting forth such
fact or facts, and upon the recording of such notice by the Associa-
tion's president and secretary, the entire remaining premises shall
be sold by the Association, as attorney-in-fact for all of the owners,
free and clear of the provisions contained in this Declaration, the
Map and the By -Laws. The insurance settlement proceeds shall be
collected by the Association, and such proceeds shall be divided by
the Association according to each unit owner's interest (as such
interests appear on the policy or policies) and such divided proceeds
shall be paid into as many separate account- as there are units covered
by this declaration, each such accounts representing one of the condo-
minium units. Each such account shall be in the name of the Asso-
ciation, and shall be further identified by the number of the apart-
ment unit and the name of the owner. From each separate account, the
Association, as attorney-in-fact shall use and disburse the total
amount (of each) of such accounts, without contribution from any
account to another, toward the full payment of the lien of any first
mortgage against the condominium unit represented by such separate
account. There shall be added to each such account, the apportioned
amount of the proceeds derived from the sale of the entire property.
Such apportionment shall be based upon each condominium unit owner's
percentage interest in the general common elements. The total Funds
of each account shall be used and disbursed, without contribution
from one account to another, bythe Association, as attorney-in-
fact, for the same purposes and in the same order as is -provided in
sub -paragraph (b)(1) through (5)of this paragraph.
If the owners representing an aggregate ownership interest of
three-fourths (3/4ths) of the condominium units, or more, adopt a
plan for reconstruction, which plan has the unanimous approval of
all first mortgagees, then all of the owners shall be bound by
the terms and other provisions of such plan. Any assessment made in
connection with such plan shall be a common expense and made pro rata
according to each owner's percentage interest in the general common
elements and shall be due and payable as provided by the terms of
such plan but not sooner than thirty days after written notice thereof.
The Association shall have the authority to cause the repair or
restoration of the improvements using all of the insurance proceeds
for such purpose notwithstanding the failure of an owner to pay the
assessment. The assessment provided for herein shall be a debt of
each owner and a lien on his condominium unit and may be enforced
and collected as is provided in paragraph 24.
In addition thereto, the Association, as attorney-in-fact, shall
have the absolute right and power to sell the condominium unit of any
owner refusing or failing to pay such assessment within the time pro-
vided, and if not so paid, the Association shall cause to be recorded
a notice that the condominium unit of the delinquent owner shall be
.sold by the Association. The proceeds derived from sale of such
condominium unit shall be used and disbursed by the Association,
as attorney-in-fact, for the same purposes and in the same order
as is provided in sub-paragraph(b)(1) through (5) of this paragraph.
(d) The owners representing an aggregate ownership interest of
three-fourths-.(3/4ths) of the condominium units covered by this
declaration$or more, may agree that the general common elements of
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the property are obsolete and that the same should be renewed or re-
-constructed. In such instance, then the expense thereof shall be
payable by all of the owners as common expenses; provided, however,
=that any owner not agreeing to such renewal or reconstruction may
give written notice to the Association that such unit shall be pur-
chased by the Association for the fair market value thereof. If
such owner and the Association can agree on the'fair market value
thereof, then such sale shall be consummated within thirty days there-
after. If the parties are unable to agree, the date when either
party notified the other that he or it is unable to.agree with the
..other shall be the "Commencing date" from which all periods of time
mentioned herein shall be measured. Within ten days following the
commencement date, each party shall nominate in writing (and give
notice of such nomination to the other party), the appraiser who
shall be a member of the Beaumont Real Estate Board. If either
party fails to make such a nomination, the appraiser nominated shall
within five days after default by the other party appoint and asso-
ciate with him another appraiser (to be selected from the Beaumont
Real Estate Board). If the two appraisers designated by the parties
or selected pursuant hereto in the event of.the default of one party,
-are unable to agree, they shall appoint another appraiser (to be
selected from the Beaumont Real Estate Board) to be umpire between
them, if they can agree on such person. If they are unable to agree
upon such umpire, then each appraiser previously appointed shall
nominate two persons (each of whom shall be a member of the Beaumont
.Real Estate Board), and from the names of the four persons so nominated.
shall be drawn by lot by any judge ofany court of record in Texas,
and the name so drawn shall be the umpire. The nominations from
whom the umpire id to be drawn by lot shall be submitted within ten
days of the failure of the two appraisers to agree, which in any
event shall not be later than twenty days following the appointment
of second appraiser. The decision of the appraisers as to the fair
market value or in.the case of their disagreement, the decision of
the umpire, shall be final and binding. The expenses and fees of
such appraisers shall be borne equally by the Association and the
owners. The sale shall be consummated within fifteen days thereafter,
and the Association, as attorney-in-fact, shall disburse such proceeds
as is provided in sub -paragraph (b)(1) through (5) of this paragraph.
(e) The owners representing an aggregate ownership interest of
three-fourths (3/4ths) of the condominium units, covered by this
declaration,.or more, may agree that the general common elements of
the property are obsolete and that the same should be sold. In such
instance, the Association shall forthwith record a notice setting
forth such fact or facts, and upon the recording of such notice
by the Association's president and secretary, the entire premises
shall be sold by the Association, as attorney-in-fact for all of the
owners, free and clear of the provisions contained in this Declara
.tion, the Map and_the By -Laws. The sales proceeds shall be apportioned
between the owners:, on the basis of each owner's percentage interest
in the general common elements, and such apportioned proceeds shall
be paid into as many separate accounts as there are units covered by
this declaration, each such account representing one condominium unit.
Each such account shall be in the name of the Association, and shall
be further identified by the number of the Apartment and the name of
'the owner. From each separate account, the Association as attorney
in -fact, shall use and disburse the total amount (of each) of such
funds, without contribution from one fund to another, for the same
purposes and in the same order as is provided in subparagraph (b)(1).
through (5) of this paragraph.
31. Prior to the first conveyance of any condominium unit,
Declarant shall execute and deliver a bill of sale to the Association,
transferring all'items of personal property located.on the entire
.premises and furnished by Declarant, which property is intended for
the common use and enjoyment of the condominium unit owners and occu-
pants. The Association shall hold title to such property for the
use and enjoyment of the condominium unit owners and occupants. No
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owner shall have any other interest and right thereto, and all such
right and interest shall absolutely terminate upon the owner's
termination of possession of his condominium unit.
32. All notices, demands, or other notices intended to be
served upon an owner shall be sent by ordinary or certified mail,
postage prepaid, addressed in the name of such owner in care of the
apartment number and building address of such owner. All notices,
demands, or other notices intended to be served upon the Managing
Agent, or the Board of Managers of the Association, or the Association
shall be sent by ordinary ,,or certified mail, postage prepaid, 3679
Calder, Beaumont, Texas, until such address is changed by a notice
of.address change duly recorded.
33• If any of the provisions of this Declaration or any paragraph,
sentence, clause, phrase, or word, or the application thereof in any
circumstances be invalidated, such invalidity shall not affect the
validity of the remainder of this Declaration and the application of
any such provisions, paragraph, sentence, clause, phrase or word in
any other circumstances shall not be affected thereby.
34. The provisions of this Declaration shall be in addition and
supplemental to the Condominium Ownership Act of the State of Texas
and to all other provisions of law.
35. That whenever used herein, unless the context shall otherwise
provide, the singular number shall include the plural, the plural
the singular, and the use -of any gender shall include all genders.
EXECUTED this g0th day of _ September , 1977,
NICHOLS COMPANY, A PARTNERSHIP.
By: `;0- S%t .
H. G. Nichols, Sr., a Partner
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
BEFORE ME, the undersigned authority, on this day personally
appeared H. G. Nichols, Sr. , known to me to be the person and partner
whose name is subscribed to the foregoing instrument, and acknowledged
to me that he executed the same as the act of NICHOLS COMPANY, a
partnership of which he is a partner, for the purposes and considera-
tion expressed and in the capacity therein stated, and that he was
authorized to do so.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 3,,_,. day of
October , 197 7.
NOTARY PUBLIC IN AND FOR
JEFFERSON COUNTY, TEXAS
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EXHIBIT "B"
BY-LAWS
OF
MARSHALL PLACE TOWNHOUSES
SECTION FIVE
ARTICLE I.
OBJECT
(Plan of Apartment Ownership)
1. The purpose for which this non-profit Association is formed
is to govern the condominium property situated in the County of Jef-
ferson, State of Texas, which property is described and depicted in
Exhibit "A", which by this reference is made a part hereof, and which
property has been submitted to the provisions of the Condominium
Ownership Act of the State of Texas.
2. All present or future owners, tenants, future tenants, or
any other person that might use the facilities of the project in any
manner are subject to the regulations set forth in these By -Laws.
The mere acquisition or rental of any of the condominium units
(hereinafter referred to as "Units") of the project or the mere act
of occupancy of any of said units will signify that these By -Laws are
accepted, ratified, and will be complied with.
ARTICLE II.
MEMBERSHIP, VOTING, MAJORITY OF OWNERS,
QUORUM, PROXIES
1. Membership. Any person on becoming an owner of a condominium
unit shall automatically become a member of this Association and be
subject to these By -Laws. Such membership shall terminate without
any formal Association action whenever such person ceases to own a
condominium unit, but such termination shall not relieve or release any
such former owner from any liability or obligation incurred under, or
in any way connected with the condominium regime established by the
foregoing declaration, during the period of such ownership and
membership in this Association, or impair the rights or remedies which
the Board of Managers or the Association or others may have against
such former owner and member arising out of or in any way connected
with such ownership and membership, and the covenants and obligations
incident thereto. No Certificates of stock shall be issued by the
Association., but the Board of Managers may,if it so elects, issue
one membership card to the owner(s) of a condominium unit. Such
membership card shall be surrendered to the Secretary whenever owner-
ship of the condominium unit designated thereon shall terminate.
2. Voting. Voting shall be based upon the percentage of the
undivided interest of each unit owner in the general common elements.
An owner of an undivided fractional interest in and to a condominium
unit shall be entitled to a vote equal to his fractional ownership
interest in such unit. Cumulative voting is prohibited.
3. Majority of Unit Owners. As used in these By -Laws, the
term "majority of unit owners shall mean the apartment owners with
51% or more of the votes weighted so as to coincide with the percentages
assigned in the Declaration.
4. Quorum. Except as otherwise provided.in these ByLaws,
the presence in person or by proxy of a "majority of unit owners" as
defined in paragraph 3 of this Article shall constitute a quorum.
5. Proxies. .-Votes may be cast in person or by proxy.
.-Proxies may be filed -with the Secretary before the appointed time,of
each meeting.
ARTICLE III.
ADMINISTRATION
1. Association Responsibi*li'ti*es. The owners of the Units
.will constitute the.Association of Unit Owners, hereinafter referred
to as "Association," who will have the responsibility'6f administering
the project through a Board of Managers.
.2. Place of Meetings. Meetings of the Association shall be
held at such place as the Board of Managers determine.'
3. Annual Meetings. The first annualmeeting of the Associa-
t`ion shall be Yield on or before one year after the date hereof.
Thereafter, the annual meetings of the Association shall be held on
the fourth Monday of whatever month the first annual meeting is held
in, as that month comes around each succeeding year. At such meetings
:there shall be elected by ballot of the owners of a Board of Managers
in accordance with the requirements of Paragraph 5 of Article IV
of these By -Laws. The owners may also transact other business of the
Association as may properly come before them.
4. Special Meetings. It shall be the duty of the President
to call a special meeting of the owners as directed by resolution of
the Board of Managers, or upon a petition signed by.a majority of
'the owners and having been presented to the Secretary. The notice
of any special meeting shall state the time and place of such
meeting and the.purpose thereof. No business shall be transacted at
.a special meeting except as stated in the notice unless by consent
of four-fifths of the owners present, either in person or by proxy.
5. Notice of Meetings. It shall be the duty of the Secretary
to mail.a notice of each annual or special meeting, stating the purpose,
thereof, as well as the time and place where it is to be held, to
each owner of record, at least 5 but not.,more than 10 days prior to
such meeting. The mailing of a notice in the manner provided in this
paragraph shall be considered notice served.
6. Adjourned Meeting. If any meeting of owners cannot be
organized because•a quorum has not attended, the owners who are
present, either in person or by proxy, may adjourn the meeting to a
:time not less than forty-eight hours from the time the original
meeting was called.
.7. Order of Business. The order of business at all meetings
of the owners of unfits shall be as follows:
(a) Roll Call
(b) Proof of notice of meeting or waiver of notice.
(c) Reading of. minutes of preceding meeting
(d) Reports of officers
(e) Reports of Committees
(f) Election of Managers
(g) Unfinished business
(h) New business
ARTICLE IV
BOARD OF MANAGERS
1. Number and Qualification. The affairs of this Association
shall be governed by a Board of Managers composed of three persons.
The following persons shall act in such capacity and shall manage the
affairs of the Association until one year after the date hereof,
unless all of the units of this regime are leased or sold prior to the
end of such year at which earlier time they will have the option to
cease being members of the Board of Managers or unless their successors
are elected prior to the,end of such year, to -wit: H. G.. Nichols,
H. a. Nichols.,,Jr., and Reed Nichols.
-2-
•
16 1 //X
2. Powers and Duties. The Board of Managers shall have the
powers and duties necessary for the administration of the affairs
of the Association and for the operation and maintenance of a first
class residential condominium project. The Board of Managers may
do all such acts and things as are not by these By -Laws or by the
foregoing Condominium Declaration directed to be exercised and done
by the owners.
3.. Other Powers and Duties. The Board of Managers .shall be
empowered and shall have the duties as follows:
(a) To administer and enforce the -covenants, conditions,
restrictions, uses, limitations., obligations, and all other p'ro-
visions set forth in the Condominium Declaration submitting the
property to the provisions of the Condominium Ownership Act of the
State of Texas.
(b) To establish, make and enforce compliance with such
reasonable house rules as may be necessary for the operation, use
and occupancy of this condominium project with the right to amend
same from time to time. A copy of such rules and regulations shall
be delivered or mailed to each member promptly upon the adoption
thereof.
(c) To keep in good order, condition and repair all of the
general and limited common elements and all items of personal property
used in the enjoyment of the entire premises.
(d) To insure and keep insured all of the insurable general
common elements of the property in an amount equal to their maximum
replacement value as provided in the Declaration. Maximum replacement
value shall be determined annually by one or more written appraisals.
The type and kind of such insurance contracts shall be determined
by what a majority of the unit owners direct. Further, to obtain
_and maintain an owners, landlord and tenant comprehensive liability
insurance policy covering the entire premises in amounts not less
than $100,000.00 per person and $300,000.00 per accident and $50,000.00
property damages and also such other types and kinds of insurance
covering such.other risks as a majority of the unit owners shall
direct. To insure and keep insured all of the fixtures, equipment
and personal property acquired by the Association for the benefit
of the Association and the owners of the condominium units and
their first mortgagees.
(e) To fix, determine, levy and collect the monthly prorated
assessments. 'To levy and collect special assessments whenever in
.the opinion of the Board it is necessary to so do in. -order to meet
increased operating ormaintenance expenses or costs, or additional
capital expense, or because of emergencies. All monthly or other
assessments shall be in itemized statement form and shall set forth
the detail of the various expenses for which the assessments are
being made.
-(f) To collect delinquent assessments by suit or otherwise
and to enjoin or seek damages from an owner as is provided in the
Declaration and these By -Laws.
(g) To protect and defend the entire premises.from loss and
damage by suit or otherwise.
(h) To borrow funds in order to pay for any expenditure
or outlay required, to execute all such instruments evidencing such
indebtedness which shall be the serveral obligation of all of the
owners in the same proportion as their interest in the general common
elements.
(i) To enter into contracts within the scope of their; -duties
and powers.
(j) To establish a bank account for the common treasury
and for all separate funds which are required, or may be deemed
..,advisable by the Board of Managers.
(k) To keep and maintain full and accurate books and
records showing all of the receipts, expenses or disbursements and to
permit examination thereof at any reasonable time by each of the owners..
and to cause a complete audit of the books and accounts by a competent
certified public accountant once each year.
(1) To prepare and deliver annually to each owner a statement
showing all receipts, expenses or disbursements since the last such
statement.
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(m) To meet at least once each quarter.
(n) To designate the personnel necessary for the maintenance
:and operation of the general and limited common elements.
(o) In general, to carry on the administration of this
Association and to do all of those things necessary and reasonable
in order to carry out the communal aspect of condominium ownership.
4. Managing Agent. The Managing Agent shall be Declarant
in the foregoing Declaration or whatever person or entity to whom.
such Declarant for purposes of resale may convey all its apartment
units in this regime which at the time of such conveyance it has not
sold to owner occupants and such Managirg Agent shall have all of the
powers and shall perform the duties of the Board of Managers until
one year after the date hereof, unless all units in this regime are
leased or sold prior to the end of such year at which earlier time
Declarant shall have the option to cease being such Managing Agent.
- Declarant will receive no compensation for serving as Managing
Agent. Subsequent to one year after the date hereof, or subsequent
to the lease or sale of all units in this regime, whichever comes
first in time, the Board of Managers may employ for the Association
.a Managing Agent at a compensation to be established by the Board
to perform such duties and services as the Board shall authorize,
including, but not limited to, the duties listed in paragraph 3 of
this Article, but such subsequently employed Managing Agent may not
be Declarant unless Declarant is to serve without compensation.
5. Election and Term_ of Office. At the first annual
meeting of the Association the term of office of one Manager shall
be fixed for three years. The term of office of one Manager shall
be fixed at two years, and the term of office of one Manager shall
be fixed at one year. At the expiration of the initial term of
office of each respective Manager his successor shall be elected
to serve a term of three years. The three persons acting as Managers
shall hold office until theirsuccessors have been elected and hold
their first meeting.
6. Vacancies. Vacancies on the Board of Managers caused
..by any reason other than the removal of a Manager by a vote of the
Association shall be filled by vote of the majority of the remaining
Managers, even though they may constitute less than a quorum, and
-each person so elected shall be a.Manager until a successor is
elected at the next annual meeting of the Association.
7. Removal of Managers. At any regular or special meeting
duly called, any one or more of the Managers may be removed with or
without cause by a majority of the owners, and a successor may then
and there be elected to fill the vacancy thus created. Any Manager
whose removal has been proposed by the owners shall be given an
opportunity to be heard at the meeting.
8. -Organization Meeting. The first meeting of a newly elected
..Board of Managers shall be held within ten days of election at such
;..place as shall be fixed by the Managers at the meeting at which such
Managers were elected, and no notice shall be necessary to the newly
elected Managers in order legally to.constitut.e such.meeting, providing
a majority of the whole Board shall be present.
.9. Regular"Meetings. Regular meetings of the Board of Managers
.may be held at such time and place as shall be determined from time
'to time, by a majority of the Managers,, -"but at least four such meetings
shall be held during each fiscal year. Notice of regular meetings
of the Board of Managers shall be given to each Manager, personally
or by.mail, telephone or telegraph, at least three days prior to
the day named for such meeting.
10. Special Meeting. Special meetings of the Board of
Managers may be called by the President on three days' notice to each
Manager, given personally, or by mail, telephone or telegraph, which
notice shall state the time, place (as hereinabove provided) and
purpose of the meeting. Special meetings of the Board .of Managers
shall be called by the President or Secretary in'like manner and on
like notice on,the written request of at least two Managers.
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11. Waiver of Notice. Before or at any meeting of the Board
of Managers, any Manager may, in writing, waive notice of such meeting
and such waiver shall be deemed equivalent to the giving:.•of such notice.
Attendance by a Manager at any meeting of the Board shall be a waiver
of notice by him of the time and place thereof. If all Managers are
present at any meeting of the Board, no notice shall be required
and any business may be transacted at such meeting.
12. Board of Managers' Quorum. At all meetings of the Board
of Managers, a maj-ority of the Managers shall constitute a quorum for
the transaction of business, and the acts of the majority of the
Managers present at a meeting at which a quorum is present shall be
the acts of the Board of Managers. If, at any meeting of the Board
of Managers, there be less than a quorum present, the majority of,those
present may adjourn the meeting from time to time. At any such adjourned
meeting,any business which might have been transacted at the meeting
as originally called may be transacted without further notice.
13. Fidelity Bonds. The Board of Managers may require that all
officers and employees of the Association handling or responsible for
.Association funds shall furnish adequate fidelity bonds. The premiums
on such bonds shall be paid by the Association-.
ARTICLE V.
OFFICERS
1. Designation. The officers of the Association shall be a
President, a Secretary, and a Treasurer, all of whom shall be elected
by and from the Board of Managers.
2. Election of Officers. The officers of the Association
-shall be.elected annually by the Board of Managers at the organization
'meeting of each new Board and shall hold office at the pleasure of the
Board.
3. Removal of Officers. Upon an affirmative vote of a majority
of the members of the Board of Managers, any officer may be removed,
. either with or without cause, and his successor elected at any regular
meeting of the Board of Managers, or at any special meeting of the
Board.called for such purpose.
4. President. The President.shall be the chief executive
..,officer of the Association. He shall preside at all meetings of
the Association and of the Board of Managers. He shall have all of
the general powers and duties which are usually vestedjn the office
of President of an association, including, but not limited to,the
power to appoint committeesfrom among the owners from time to time
as he may in his discretion decide is appropriate to assist in the
conduct of the affairs of the Association.
5. Secretary. The Secretary shall keep all the -minutes
of all meetings of the Board of Managers and theminutes of all
'meetings of the Association; he shall have charge of such books and
papers as the Board of Managers may direct; and he shall, in general_,
'Perform all the duties incident to the office of Secretary.
The Secretary shall compile and keep up.to date at the principal
"office of the Association a complete list of members and their last
known addresses as shown on the records of the Association. Such
list shall also show opposite each member's name the number or other
appropriate designation of the apartment unit owned by such members"
and the garage or parking space and storage space assigned for use
in connection with such apartment unit. Such list shall be open to
,inspection by members and other persons lawfully entitled to inspect
the same at reasonable time during regular business hours.
6. Treasurer. The Treasurershall have responsibility for
Association funds and shall be responsible for keeping full and accu-
rate accounts -of all receipts and disbursements in books belonging to
the Association.. -He shall be responsib"1e for the.. deposit. of all monies
and other valuable effects in the name, and to.the credit, of the
Association in"su.ch depositaries as may from time to -time be designated
by --the :Board of Managers.
5 •
ARTICLE VI.
INDEMNIFICATION OF OFFICERS AND MANAGERS
The Association shall indemnify every Manager or officer,
his heirs, executors and administrators, against all loss, costs
and expense, including counsel fees, reasonably incurred by him in
connection with any action, suit or proceeding to which he may
be made a party by reason of his being or having been a Manager
or officer of the Association, except as to matters as to which
he shall be finally adjudged in such action, suit or proceeding
to be liable for gross negligence or willful misconduct. In the
event of a settlement, indemnification shall be provided only in
connection with such matters covered by the settlement as to which
the Association is advised by counsel that the person to be indemnified
has not been guilty of gross negligence or willful misconduct in the
performance of his duty as such Manager or officer in relation to
the matter involved. The foregoing rights shall not be exclusive of
other rights to which such Manager or officer may be entitled. All
liability, loss, damage, costs and expense incurred or suffered by
the Association by reason or arising out of or in connection with
the foregoing indemnif':.cation provisions shall be treated and handled
by the Association as Common expenses; provided, however,.that
nothing in this Article VI contained shall be deemed to obligate
the Association to indemnify any member or owner of a condominium
unit, who is or has been a Manager or officer of the Association,
with respect to any duties or obligations assumed or liabilities
incurred by him under and by -virtue of the foregoing Declaration as
a member or owner of a condominium unit covered thereby.
ARTICLE VII.
OBLIGATIONS OF THE OWNERS
1. Assessments. All owners, upon completion of the purchase
thereof, or occupancy by such owner or tenant, whichever occurs
first, shall be obligated to pay the monthly assessments imposed by
the Association to meet the common expenses. The assessments shall be
made prorata according to percentage interest in and.to the general
common elements and shall be due monthly in advance. A member shall
be deemed to be in good standing and entitled to vote at any annual or
a special meeting of members, within the meaning of these By -Laws,
if .and only if he shall have fully paid all assessments made or levied
against him and the condominium unit owned by him.
2. Maintenance and Rep air.
a Every owner' must perform promptly at his own expense
all maintenance and repair work within his own apartment unit, which
if omitted would affect the project in its entirety, or in a part belong-
ing to other owners.
(b) All the repairs of internal installations of each unit
such as water, light, gas power, sewage, telephone, air conditioners,
sanitary installations, electrical fixtures and all other accessories,
equipment and fixtures belonging to the unit area shall be at the
expense of each unit's owner. External installations of each unit
such as electric lines, wires, conduits or systems and heating and
air conditioning systems shall be maintained by the owner of the unit
exclusively served by same. An owner shall also maintain all the
plumbing serving exclusively his apartment unit, and maintenance of
sewer lines serving more than one apartment unit and running from
the end of an apartment unit's single sewer line to the point where
suchsewer linebecomes the property of the City of Beaumont. shall
be "common. expenses".
(c) Damage to exterior doors and windows shall be repaired
by and at the expense of the owner, provided, however, if such damage
or loss is covered by insurance, such owner shall be entitled to re-
imbursement to the extent of the insurance payment. Replacement or
repair of exterior doors or windows required because of ordinary wear
and tear and deterioration shall be paid for out of the assessments
levied and collected by the Board of Managers.
(d) An owner shall be obligated to reimburse the Association
promptly upon receipt of its statement for any expenditures incurred
by it in repairing or replaing any general or limited common element
damaged by his negligence or by the negligence of his tenants or agents.
3. Mechanic's Lien. Each owner agrees to indemnify and to
hold each of the other owners harmless from any and all claims of
Mechanic's Lien.filed agaist other apartment units and the appurtenant
generalcommon elements for labor., materials., services or other products
incorporated in the owner's apartment unit. In the event suit for
foreclosure is commenced, then within ninety.days thereafter such owner.
shall be required to deposit with the Association cash or negotiable
securities equal to the amount of such claim, plus interest for one
year, together with the sum of One Hundred Dollars. Such sum or
securities shall be held by the Association pending final adjudication
or settlement of the litigation. Disbursements of such funds or pro.-
ceeds shall be made to insure payment of or onaccountof such final
judgment or settlement. Any dificiency shall be paid forthwith by the
subject ow ' ner, and his failure to so pay shall entitle the Association
to make such payment, and the amount thereof shall be a debt of the
owner and a lien againsthis condominium unit., which may be foreclosed
�,as is provided in paragraph 24 of the Declaration.
.4., General.
(a)
Each owner shall comply strictly with the provisions
--of the foregoing Condominium Declaration.
(b) Each owner shall always endeavor to observe and promote
,.the.,cooperative purposes 'for the accomplishment of which the project
covered by the foregoing.Declaration was built,
.5. Use of Units - Internal Changes.
Ta7 All units shall be utilized for single family residential
purposes only and no unit shall be occupied other than on.a temporary
-basis by more than two persons per bedroom and the occupancy by more than
...such number continuing for a period of ten days shall be deemed for
this purpose to constitute permanent occupancy.
(b) An owner shall not make structural modifications or
alterations to his unit or installations located therein, without
previously notifying the Association in writing through the Man'aging
Agent, or if.no Managing Agent is employed,, then through the President
of the Board of Managers. The Association shall have the obligation
to.answer within five days after such notice, and failure to do so
within the stipulated time shall mean there in np,obje.ction to the
proposed modification or alteration.
(c) An owner, however, with the approval of design thereof
by the Board of Managers may install awnings- or covers over the Patio:
area assigned to, -his unit, with the cost of., installation and the
maintenance thereof to be borne by such owner.
6. Use of General Common Elements and Limited Common Elements.
Each -owner may use the general common elements and the limited common.,,
elements in accordance with the purpose for which they were intended
without.hindering or encroaching upon the lawful rights of the '6ther
owners.,
- 7 Ri4t of Entry.
(a) An owner shall grant the right of entry to the Managing
Agent, or to any other person authorized by the.Board of Managers, in
case. of any-'emer-9ency originating in or threatening his unit, whether
the owner is present at the time or not.
(b) ., An owner shall permit other owners, or their representa
'..-fives when so" required,, to enter his unit for the purpose of perform-
;ing`installations, alterationsorrepairs to the mechanical or electri-,
._:.cal services,, provided that requests for entry are made in advance and,
that --such entry is at a time convenient to the owner. In case of
an emergency, such right of entry shall be immediate.
8. Rules and Regulations.
All owners shall promptly and completely comply with
each of the rules and regulations herein contained or hereafter
properly adopted for the utilization of any recreational facilities
that may be afforded. All owners and their guests shall, achieve
maximum utilization of such facilities consonant with the rights of
each of -the other owners thereto.
(b) Nothing.shall be done in any residential unit, nor
shall same be occupied or used for any purpose, nor shall any commod-
ifty, product or personal property be kept therein'or thereon, which
..,.shall cause such improvements to be uninsurable against loss by fire,
or the perils included in an extended coverage endorsement under the
rules of the State of Texas Insurance Commission, or which might cause
or warrant any policy or policies covering said premises to be cancelled
or suspended by the issuing Company.
(c) owners and occupants of units shall at all times
exercise extreme care to avoid making or permitting to be made loud
or objectionable noises, and in using or playing or permitting to be
used or played musical instruments, radios, phonographs, television
sets, -.amplifiers, and any other instruments or devices in such manner
as may disturb or tend'to disturb owners, tenants, or other occupants
..of condominium units in the condominium regime established by the
:.foregoing Declaration. No unit shall be used or occupied in such man-
ner as to.obstruct or interfere with the enjoyment of occupants or
other residents of adjoining units,.nor shall any nuisance, or, immoral
or illegal activity be committed'or permitted to occur in or on any
unit or, upon . any part of the common elements of the condominium regime-.
established by the foregoing Declaration.
..(d) The common area is intended for use for the purpose of
affording vehicular and -pedestrian movement within the condominium.,
and of providing access to the units; those portions thereof adapted.
-.therefor, for recreational use by the owners and occupants of units;
and all thereof for the beautification of the condominium and for
providing privacy for the residents thereof through landscaping and
such other means as shall be deemed appropriate. No part 'of the com-
mon area. shall be obstructed so as to interfere with its use for the
purposes hereinabove recited, nor shall any part of the common area
(common elements) be used for general storage purposes after the com
,,..Pletion of the construction of the units by developer, nor anything
done theron in any manner which shall increase the rate for hazard
and liability insurance covering said area and improvements situated
-thereon. Not more than two small dogs, cats, or other usual small
household pets may be kept in any unit, provided Always that.such
-household pets.shall be allowed on the common areas only as may be
specified under reasonable rules therefor promulgated by the Board
of Managers.. ExQept as hereinabove stated, no animal, livestock,
birds or poultry shall be brought within.thecondominium or kept in
or,around any unit thereof.
(e) No resident of the condominium shall post any advertise'
meets, signs, or posters, of any kind in or on the project except as
authorized by the Association.
(f)Garages may not be converted into living areas such as
den or play rooms and they shall be used only for normal garage purposes'.
Garages and storage areas shall at all times be kept free of an
unreasonable accumulation of debris or rubbish of any kind. Garage
doors ,shall be opened only when passing through the garage entrances
and they.shall-be closed when such.passing through has been completed.
Nothing will be put in the garage which will impede the -closing of
garage doors.'
(g) .Parking of automobiles or other vehicles- shall be only
in designated as parking space for each unit. Owners shall
n6t.park a- -vehicle in front of an apartment other than their own for
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an unreasonable length of time. No unattended automobiles or other
vehicles shall at any time be left in the alleyways or driveways or
streets in such manner ,as to impede the passage of traffic. or to impair
properr access to parking areas. No boats, trailers, camping trailers,
mobile homes, motor homes, or similar vehicles shall be parked, placed
or stored in or on the yards or streets or drivewaysin 'front'of or on
the.sides of the units on a "Permanent Basis", which shall be taken
a o mean for any period or periods in excess of forty-eight 08) con-
secutive hours.
(h) No owner, resident, or lessee shall install wiring for
electrical or telephone installation, television antennae, machines
or air conditioning units or any other devices whatsoever on the
exterior of the project or that protrude through the walls or out
of the windows, or on the roof of the project save as are expressly
in writing previously approved by the Association.
(i) No owner or other occupant of any condominium unit shall
make'any alteration or improvement to the common elements of the
condominium or remove any planting, structure, furnishings br other
equipment or object therefrom except with the written consent of the
Association.
9. Destruction or Obsolescence. Each owner shall, upon
becoming,an owner of a condominium unit, execute a power of attorney in'
favor.of the Association, irrevocably appointing the Assocition his
attorney-in-fact to deal with the owner's condominium unit upon .its
:,'destruction or obsolescence as is provided in paragraph' 30 of the
foregoing. Condominium Declaration.
ARTICLE, VIII
AMENDMENTS TO PLAN OF APARTMENT OWNERSHIP
L By -Laws. These By -Laws may be amended'by the Association
at a, duly constituted meeting for such purpose, and no amendmentshall
take effect unless approved by owners representing at least .70%.of
the-aggregage interest of the undivided ownership of the general
. common elements.
ARTICLE IX
MORTGAGES
1. Notice of Association. An owner who mortgages his unit
shall notify the Association through the Managing Agent, if any, or the
"President of the Board of Managers, giving the name and address of
his mortgagee. The Association shall maintain such information in
a book entitled "Mortgagees of Units".
2. Notice of Default. The Association shall give to the holder
of each first mortgage of a unit written notification of any default
- by the mortgagor of such unit -in the performance of such mortgagor's
obligations under theseBy-Laws and said condominium Declaration which
is not cured within 60 days and the holder of each such mortgage shall
be entitled to receive such written notification. The Association
shall allow all first mortgagees of a.unit to examine its books and
_ records or the condominium project. The Association shall give Federal'
..Home.Loan Mortgage Corporation notice (care of the Servicer at the
Servicer's address) in writing of any -loss to, or taking of, the com-
mon elements of the Condominium project if such loss or taking exceeds
:. $10,000.00, -and of any damage to a condominium unit covered by a
mortgage purchased in whole or in part by Federal Home Loan Mortgage
Corporation which exceeds $1,000.00.
ARTICLE X
COMPLIANCE
These By -Laws are set forth to comply with the requirements of
the State of Texas Condominium Ownership Act. If any of these By-
Laws_:conflict-with the provisions of said statute, it is hereby
agreed and accepted that the provisions of the Statute will appl
ARTICLE XI
;This -Association is not organized for profit. No member,
member of.the.Board of'Managers or person from whom.the Association
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may receive any property or funds shall receive or shall be lawfully
entitled to receive any pecuniary profit from the operation thereof,
and in no event shall any part of the funds or assets of the Association
be paid as salary or compensation to, or distributed to, or inure to
the benefit of any member of the Board of Managers; provided, however,
always (1) that reasonable compenstion may be p aid to any member other
than Declarant, H. G. Nichols, Sr., H. G. Nichols, Jr., or Reed Nichols
while acting as an agent or employee of the Association for services
rendered in effecting one or more of the purposes of the Association,
and (2) that any member of the Board of Managers may, from time to
time, be reimbursed for his actual and reasonable expenses incurred
in connection with the administration of the affairs of the Association.
ARTICLE XII.
The Registered office and the principal office for the transaction
of business of this Association shall be 3679 Calder Ave., Beaumont,
Texas, and the Resgistered Agent shall be H. G. Nichols at the same
address.
ARTICLE XIII
The persons who shall be authorized to execute any and all
instruments of conveyance or encumbrances, including promissory notes,
shall be the President and the Secretary of the Association.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands and seals, at Beaumont, Texas, this 30th day of
September, 1977
BOARD OF MANAGERS
H. G. Nichols, Sr. G. Nichols, Jr.
Reed Nichols
NICHOLS ,COM��P��ANY, A PARTNERSHIP p
H. G. NICHOLS, SR., -a Partner-
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_7 A
CONDOMINIUM DECLARATION
FOR
MARSHALL PLACE TOWNHOUSES
SECTION THREE
KNOW ALL MEN BY THESE PRESENTS:
THAT WHEREAS, Nichols Company, a partnership, hereinafter
called "Declarant", is the owner of real property situated in the
County of Jefferson, State of Texas, being described as follows:
Lot One (1) in Block Five (5) of the MARSHALL
PLACE, UNIT II, ADDITION to the City of Beaumont,
Jefferson County, Texas, as per map or plat
thereof of record in the office of the County
Clerk of Jefferson County, Texas, reference to
which is hereby made for all purposes;
which property is described and depicted on the Map or Plat thereof
prepared by Schaumburg & Polk, Inc., dated "
marked MARSHALL PLACE TOWNHOUSES, SECTION THREE, EXHIBIT "All which
..by this reference is made a part hereof; and
WHEREAS, Declarant, as Developer, desires to establish
a condominium regime under the Condominium Act of the State of Texas;
and;
WHEREAS, Declarant has executed plans for the construction
°of Two (2) two-story buildings and One (1) one -'story building and
.other improvements appurtenant thereto on the property described
in said Exhibit "A", which when completed shall consist of -eighteen
(18) -separately designated condominium units; and
WHEREAS, Declarant does hereby establish a plan for
the individual ownership in fee simple of estates consisting of the
area or space contained in each of toe apartment.units in the Three
(3) building improvments and the ownership by the individual and
separate owners thereof, as tenants in common .of.all of the.remaifting
property which is hereinafter defined and referred to'as the general
common elements:
l!
1. DEFINITIONS, unless the context shall expressly provide other-
wise.
(a) "Apartment" or "Apartment Unit" means an individual air
space unit which is contained within the perimeter walls, floors
and ceilings of a building as shown on said map.
(b) "Condominium Unit" means one individual air space
unit, together with the interest in the general common elements
appurtenant to such unit.
(c) "Owner" means a person, firm, corporation, partnership,
association or other legal entity, or any combination thereof, who
owns one or more condominium units.
(d) "Majority of Unit Owners" means the apartment owners with
51% or more of the votes weighed so as to coincide with percentages
assigned in this declaration.
(e) "General Common Elements" means and includes:
(1) The land on which the buildings are located;
(2) The foundation, columns, girders, beams, supports,
main walls and roofs;
(3) The common green areas, yards, gardens, parking
area, fences, storage spaces, private streets,
private service drives, walks and service easements;
(4) The installations consisting of the equipment
and materials making up central services such
as power, light, gas and the like;
(5) All other parts of the property necessary or
convenient to its existence, maintenance and
safety, or normally in common use.
(f) "Limited Common Elements" means a part of the general
common elements reserved for the exclusive use of the owner of a
condominium unit; the heating and air conditioning systems serving
one condominium unit only and garage parking areas and patio areas
indicated on map as appurtenant limited elements to a specific
unit only shall be deemed limited common elements.
(g) "Entire premises" or "property." means and includes the
land, the building, all improvements
and structures thereon, and all
rights, easements and appurtenances belonging thereto.
(h) "Common expenses' means and includes:
(1)
All sums lawfully assessed against the general
common elements by the Managing Agent or Board
of Managers;
(2)
Expenses of administration and management, maintenance
(3)
repair'or replacement of the general common elements;
Expenses
(4)
agreed upon as common expenses by the owners;
Expenses declared
common expenses by provisions of
this Declaration and by the By -Laws; ,-
(5)
Special assessements for capitol improvements to, and
extraordinary maintenance and repair of, all private
streets within the entire premises;
(6)
A monthly assessment for each owner's pro -rata share
of the monthly utilities which may be metered or sold
to the condominium regime as a unit;
(7),
Special assessments for ordinary maintenance and
repair, as well as special assessments for extraordi-
nary maintenance and repair, as well as capital
improvements for, all sewage,collection systems and
water lines shared in common by, and servicing in
common, all owners within the condominium regime which
are not dedicated to, and accepted by, the City of
Beaumont and which are in easements so dedicated and
accepted.
EP45
i
(i) "Association of Unit Owners" or "Association" means a
Texas Non-profit association, the By -Laws of which shall govern
the administration of this condominium property, and which shall have
the obligation to reasonably maintain and repair private streets and
sewage collection sy.s:tbta and water.. -lines'. :shared in.:common
by all of the owners of the condominium units, the members of which
shall be all of the owners of the condominium units.
Q) "Map", "Survey Map", or "Plans" means and includes the
engineering survey of the land locating thereon all of the improve-
ments, the floor and elevation plans and any other drawings or
diagrammatic plan depicting a part of or all of the improvements,
same being herewith filed, consisting of one (.1) sheet labeled
Exhibit "A", and incorporated herein.
2. The map shall be filed for record simultaneously with the
recording of this Declaration as a part hereof, and prior _to the
first conveyance of any condominium unit. Such map shall consist of
and set forth (1) the legal description of the surface of the land;
(2) the linear measurements and locations, with reference to the
exterior boundaries of.the land, of the buildings and all other
•. improvements built or to be built on said land by Declarant; and
(3) floor plans and elevation plans of the buildings built or to
be built thereon showing the location, the building designation,
the apartment designation and the linear dimensions of each apartment
unit, and the limited common elements.,
3. The real property is hereby divided in the following
.:..'separate fee simple estates:
(A) Eighteen (18) fee simple estates consisting of Eighteen (18)
separately designated apartment units, each 'such unit identified by
number and by building symbol or disignation on the map, the apart-
ments_.1n each building being described as follows:
BUILDING A - Containing Five apartments, numbered Units
1, 2,-3, 4, and 5, the size, dimensions, location and
boundaries of each being detailed on the survey plat
herewith filed marked Exhibit "A"
BUILDING B - Containing Six apartments, numbered Units
6, 7, 8, 93 10, and 11, the size, dimensions, location
and boundaries of each being detailed on the survey plat
herewith filed marked Exhibit "A".
BUILDING C - Containing Seven apartme.rits.numbered Units
12, 13, 14,.151 16, 17, and 18, the 'size, dimensions,
location and boundaries of each being detailed on the survey
plat herewith filed marked Exhibit "A".
(B) The remaining portion of the entire premises, referred
to as the general common elements, which shall be-- held in common by the
owners, the interest of each therein being hereinafter set forth
and each undivided interest being appurtenant to one of the Eighteen
(18) apartment units.
.'(C)'. The percentage of ownership in
to; each -,apartment is as follows:
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the common,.Element.b tallocated
1
Unit
Building Percentage of
Number
Desi gnat ion Own'e'rsh'i'p
1
A
2
A
3
A
4
A
5
A
6
B
7
B
8
B
9
B
10
B
11
B
12
C
13
C
14
C
15
C
16
C
17
C
18
C
4. A portion of'the general common elements is set aside and
reserved.for the exclusive use of individual owners, such areas
being the limited common elements. The limited common elements
reserved for the exclusive use of the individual owners are the
automobile parking spaces, storage spaces and patio spaces, which
are shown on the map. Such spaces are allocated and assigned by the
declarant to the respective condominium units as indicated on said
Exhibit "A", the patios assigned to each apartment .unit being desig-
nated by the apartment unit number preceded by the letter "P" and in
a like manner the garage assigned to each apartment unit being desig-
nated by the apartment unit number preceded.by the letter "G". In'
like manner, heating and air conditioning systems serving only one
condominium unit shall be limited common elements. Such limited
common elements shall be used in connection with the particular
apartment unit, to the exclusion of'the use thereof by the other
owners except by invitation.
5. Each apartment and its undivided interest in and to the
general common elements appurtenant thereto shall be inseparable and
may be conveyed, leased or encumbered only as a condominium unit.
6. Every deed, lease, mortgage, trust deed or other instrument
may legally describe a condominium unit by its identifying apartment
number and building symbol or desigpation as shown on the map, followed
by the words, "MARSHALL PLACE TOWNHOUSES, SECTION THREE" and by
reference to this recorded Declaration and Map. Every such description
shall be deemed good and sufficient'for all purposes to convey, transfer,
encumber or otherwise affect the general common elements.
7. Declarant shall give written notice to the tax assessors of
the creation of condominium ownership of this property, as is provided
by law, so that each apartment unit' and its percentage of undivided
interest in the general common elements shall be deemed a separate
parcel and subject to separate assessment and taxation.'
8. A condominium unit may be held and owned by more than one
person as joint tenants, or as tenants in common, or in any real
property tenancy relationship recognized under the laws of the State
of Texas.
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9. The general common elements shall be owned in common by all
of the owners of the apartment units and shall remain undivided and
no owner shall bring any action for partition or division of the
general common elements. Nothing contained herein shall be construed
as a limitation of the right of partition of a condominium unit between
the owners thereof, but such partition shall not affect any other
condominium unit.
10. Each owner shall be entitled to exclusive ownership and posses-
sion of his apartment. Each owner may use the general common elements
in accordance with the purpose for which they are intended, with-'
out hindering or encroaching upon the lawful rights of the other
owners.
11. Each apartment shall be occupied and used by the owner only
as and for a single family residential dwelling for the owner, his
family, his social guests or his tenants.
12. If any portion of the general common"elements encroaches
upon an apartment unit or units, a valid easement for the encroachment
and for the maintenance of same, so long as it stands, shall and does
exist, If any portion of an adjoining apartment unit or units encroaches
upon any portion of the general common elements, a valid easement
for the encroachment and for the maintenance of same, so long as it
stands, shall and does exist. For title or other purposes, such
encroachment(s) and easement(s) shall not be considered or determined
to be encumbrances either on the general common elements or the apart-
ment units.
13. Subsequent to the completion of the improvements described
on the map, no labor performed or materials furnished and incorporated
in an -apartment unit with the consent or at the request of the owner
thereof, or his agent or his contractor, or subcontractor, shall be
the basis for filing of a lien against the general common elements
owned by such other owners. Each owner shall indemnify and hold
harmless each of the other owners from and against all liability
arising from the claim of any lien against the apartment unit of any
other owner, or against the general common elements for construction
performed, or for labor, materials, services or other products in-
corporated in the owner's apartment unit at such owner's request.
14. The.administration of this condominium property shall be
governed by By -Laws of the non-profit association, hereinafter named
and hereinafter referred to as the "Association." A copy of such
"By -Laws" is hereto attached in Exhii.:.t .B hereof, which Exhibit B is
incorporated herein by reference; and shall be deemed adopted by
Declarant as sole owner of the property herein described, and all
owners shall be bound thereby. Declarant may, at its election,
cuase to be formed a Texas non-profit corporation bearing said name,
in which event such non-profit corporation shall be composed of
owners of condominium units as herein set out, and such non-profit
corporation shall thereafter act and do things to be done by
"Association," and the said non-profit corporation, if formed, shall
be bound by, adopt and observe as its By -Laws, the said By -Laws hereto
attached. "Association" as here used shall refer to the member owners
as a group, both before and after incorporation.. In the event of
incorporation, a certified copy of the Certificate of Incorporation
of such "Association" shall be recorded and which shall provide that
three persons shall act as a Board of Managers and shall serve as the
Managers until their successors have been elected and qualified. An
owner of a condominium unit, upon becoming an owner, shall be a mem-
ber of the "Association" and shall remain a member for the period of
his ownership. The Managing Agent shall be Declarant or whatever
person or entity to whom Declarant for purposes of resale may convey
all its apartment units in this regime which at the time of such
conveyance it has not sold to owner occupants, and the Managing Agent
shall perform all of the duties -of the Board of Managers until one
year after the execution hereof, unless all of the units in this.
regime are leased or. sold prior to the end of such year at which
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earlier time Declarant shall have the option to cease being such
Managing Agent.
15. The owners shall have the irrevocable right, to be exercised
by the Managing Agent, or Board of Managers of the Association, to
have access to each apartment unit from time to time during reasonable
hours as may be necessary for the maintenance, repair or replacement
of any of the general common elements therein or accessible therefrom,
or for making emergency repairs therein necessary to prevent damage
to the general or limited common -elements or to another apartment
unit or units.
16. An owner shall maintain and keep in repair the interior of
his own apartment, including the'fixtures thereon. An owner shall
also maintain all electric lines, wires, conduits or systems and the
heating and air conditioning system serving his apartment unit,
whet0aer within or without same. An.owner shall also maintain all the
plumbing serving his apartment unit, and maintenance of sewer lines
serving more than one apartment unit and running from the end of
an apartment unit's single sewer line'�to the point where such sewer
line becomes the property of the City of Beaumont shall be "common
expenses". .
17. An owner shall do no act nor any work that will impair the
structural soundness.or integrity of the building or impair any ease-
ment or hereditament. No owner shall in any way alter, modify, add
to or otherwise perform any work whatever upon any of the common
elements, save with written consent of the Board of Managers first
obtained.
18. An owner shall not be deemed to own the undecorated and/or
unfinished surfaces .of the perimeter walls, ground floor and roof
surrounding his apartment unit, nor shall such owner be deemed to
own the utilities running through his apartment unit which are utilized
for or serve more than one apartment unit, except as a tenant in common.
An owner, however, shall be deemed to own and shall maintain the inner
decorated and/or finished surfaces of the perimeter and interior walls,
floors, ceilings, doors, windows and such other elements consisting
of paint, wall paper and other such finishing materials.
19. Each owner shall comply strictly with the provisions of this
Declaration, the By -Laws and the decisions and resolutions of the
"Association" adopted pursuant thereto as the same may be lawfully
amended from time to time. Failure to comply with any of the same
shall be grounds for an action to recover sums due for damages or
injunctive relief or both, maintainable by the Managing Agent or
Board of Managers on behalf of the owners or, in a proper case, by
an aggrieved owner.
20. This Declaration shall not be revoked, nor shall any of the
provisions herein be amended unless all of the owners of Condominium
Units, and all of.theholders of any recorded mortgages or Deeds of
Trust covering or affecting any or all condominium units unanimously
consent and agree to such revocation or amendments by instrument(s)
duly recorded.
21. The assessments made shall be based upon the cash requirements
deemed to be such aggregate sum as the Managing Agent or Board
of Managers of the Association shall from time to time determine
is to be paid by all of the owners, including Declarant, to provide
for the payment of all estimated ''common"expenses" as that phrase is
defined above growing out of or connected with the maintenance and
the operation of thegeneral common elements, which sum may include,
among other things, cost of management, taxes, assessments, insurance
contracts purchased pursuant to the terms hereof insuring the buildings
and the owners thereof.and their mortgagees against such risks as
may be insured against under the terms hereof, landscaping and care
of grounds, common lighting, repairs, and renovations, garbage collections,
wages, water charges, legal and accounting fees, management fees,.
expenses and liabilities incurred by the Managing Agent or Board of
Managers under or by reason of this Declaration, the payment of any
deficit remaining from a previous period, the creation of a reasonable
contingency or other reserve or surplus funds as well as other
costs and expenses relating to the general common elements. The
omission or failure of the Board to fix the assessment for any month
shall not be deemed a waiver, modification or a release of the owners
from the obligation to pay.
The Managing Agent or Board of Managers shall obtain and maintain
insurance of the type and kind required by a majority of the unit owners,
issued by a responsible insurance company authorized to od business
in the State of Texas or by more than one responsible insurance
company authorized to do business in the State of Texas should the
same not be available for purchase from one such company and such
insurance may be written in the name o.f the Managing Agent or in the
name of the Board of Managers, as Trustee or Trustees for each apart-
ment owner and each apartment owner's mortgagee, if any, or it may be
written in such other names as a majority of the unit owners may direct.
Such insurance shall not prejudice the rights of each owner to insure
his apartment on his own account and for his own benefit. The "Asso-
ciation" may also be named'in such insurance policy or policies as
insureds if required by the insuring company or companies. Such
insurance shall provide for a standard, non-contributory mortgagee
clause in favor of each first mortgagee. It shall also provide that
it cannot be cancelled by either the insured or the insurance company
until after ten days prior written notice to each first mortgagee.
Said Managing Agent or Board of Managers shall, upon request of any
first mortgagee, furnish a certified copy of such policy and the
separate certificate identifying the interest of the mortgagor. All
policies of insurance shall provide that the insurance thereunder
shall be invalidated or suspended only in respect to the interest of
any particular owner guilty of a breach of warranty, act, omission,
negligence or non-compliance of any provision of such policy, including
payment of the insurance premium applicable to that owner's interest,
or who permits or fails to prevent the happening of any event, whether
occurring before or after a loss, which under the provisions of such
policy would otherwise invalidate or suspend the entire policy, but
the insurance under such policy, as to the interests of all other
insured owners not guilty of any such act or omission, shall not be
invalidated or suspended and shall remain in full force and effect.
Determination of maximum replacement value of all condominium units
(for insurance purposes) shall be made annually by one or more written
appraisals, copies of which shall be furnished forthwith to each mort-
gagee of a condominium unit. In addition, each owner shall be notified
of such appraisal(s).
22. All owners shall be obligated to pay the estimated assess-
ments.imposed by the Board of Mangers or Managing Agent of the ASS.o-
ciation to meet the common expenses and by acceptance of a deed for a
unit whether expressly stated in such deed or not, shall be deemed'
to convenant and agree to pay to the Association of Unit Owners the
assessments provided for herein. Except for insurance premiums,
the assessments shall be made basically pro rata according to each
owner's percentage interest in and to the general common elements,
but not necessarily in such exact proportion if the Board of Mangers
deem such improper or unfair. Assessments for insurance premiums
shall'be based upon the proportion of the total premium(s) that the
insurance carried on a condomium unit bears to total coverage. Assess-
ments for the estimated common. expenses, including insurance, shall
be due monthly in advance on or before the fifth day of each month.
Failure to pay by the fifteenth day of each month shall require the
imposition and assessment of a late charge of $5.00. The Managing
Agent or Board of Managers shall prepare and deliver, or mail, regu-
larly at least.every three months to each owner an itemized statement
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showing the various estimated or actual expenses for which the
assessments are made.
Declarant shall not be liable for assessments prior to the sale
or lease of all units.
Contribution for monthly assessments shall be prorated if the
ownership of a condominium unit commences on a day other than on
the first day of the month.
23. No owner may exempt himself from liability for his contri-
bution towards the common expenses by waiver of the use or enjoyment
of any of the general or common elements or by abandonment of his
apartment.
24. All sums assessed but unpaid for the share of common expenses
chargeable to any condominium unit, including interest thereon at
ten percent per annum, shall constitute a lien on such unit superior
(prior) to all other liens and -encumbrances, except only for:
(a) Tax and Special assessment liens in favor of any assessing
unit, and
(b) All sums unpaid on a first mortgage or first deed of trust
of record, including all unpaid obligatory sums as may be
provided by such encumbrances, and including additional
advances made thereon prior to the arising of such a lien.
To evidence such lien the Board of Managers or Managing Agent
may, but shall not be required to, prepare a written notice setting
forth the amount of such unpaid indebtedness, the name of the owner
of the condominium unit and a description of the condominium unit.
Such a notice shall be signed by one of the Board of Managers or
by the Managing.Agent and may be recorded in the office of the Clerk
and 'Recorder of -Jefferson County, Texas. Such lien for the common
expenses shall attach from the date of the failure of payment of the
assessment:
Such lien may be enforced by foreclosure of the defulting owner's
condominium unit by the Association in like manner as a mortgage on
real property upon the recording of a notice or claim thereof. In
any such foreclosure, the owner shall be required to pay the costs
and expenses of such.proceedings, the costs and expenses for filing
the notice or claim of lien and all reasonable attorney's fees. The
owner shall also be required to pay to the Association a reasonable
rental for the condominium unit during the period of foreclosure,
and the Association shall be entitled to a receiver to collect the
same. The Association shall have the power to bid in the condominum
unit at foreclosure sale and to acquire and hold, lease, mortgage
and convey same.
To secure and enforce the payment of said assessments, and for the
auxiliary and cumulative enforcement of said lien hereinabove created,
Declarant has granted, sold and conveyed and by these presents does
grant, sell and convey unto Morris Beck, Trustee, of Jefferson County,
Texas, and his substitute or successors, each of the hereinbefore
described condominium units. To have and to hold the said premises,
together with the rights, privileges and appurtenances unto the said
Trustee, and to his substitutes or successors forever. And Declarant
does hereby bind itself, its successors and assigns, to warrant and
forever defend the said premises unto the said Trustee, his substitutes,
successors and assigns forever, against the claim or claims of all
persons claiming or to claim the same, or'any part thereof, for and
upon the following trusts, terms, covenants and agreements, to -wit:
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Declarant, its successors and assigns may hereafter become justly
indebted to the Association for the hereinbefore mentioned assessments
and should Declarant, its successors and assigns do and perform all of
the covenants and agreementsherein contained and make prompt payment
of the assessments hereby secured as the same shall become due and
payable, then this conveyance shall become null and void and of no
further force and effect; but in the event of.default in the payment
of any assessment hereby secured, in accordance with the terms hereof
it shall thereupon, or any time thereafter, be the duty of the Trustee,
or his successor or substitute, at the request of the Association
(which request is hereby conclusively presumed) to enforce this trust
and make sale of the condominium unit against which the assessment is
made, as provided in Article 3810, Revised Civil Statutes of Texas
1925, after notice as provided in said Article (but without any other
notice than is required by said Article 3810), and make due conveyance
to the purchaser or purchasers, with general warranty binding the
Declarant, its successors and assigns; and out of the money arising
from such sale, the Trustee acting shall first pay all expenses of
advertising said sale and making the conveyance, and then to the
Association the full amount of assessments owing, interest thereon,
and reasonable attorney's fees, rendering the balance of the sales
price, if any, to the owner of such unit prior to such sale, his heirs
or assigns; and the recitals in the conveyance to said purchaser or
purchasers shall be full and conclusive evidence of the truth of the
matters therein stated, and all prerequisites to said sale shall be
presumed to have been performed and such sale and conveyance shall be.
conclusive.against the owner of such unit prior to such sale, his
heirs and assigns.
In case of the absence, resignation, death, inability, failure
or refusal of the Truatee herein named or.'of any substitue Trustee
appointed hereunder to act, or in the event the Association shall
deem:it desirable to remove without cause the Trustee or any substi-
tute Trustee and appoint another to execute this trust, then in any
of such events the Association shall have the right and is hereby
authorized and empowered to appoint a successor and substitute without
any formality other than an appointment and designation in writing;
and this appointment shall vest in him, as Trustee, the estate and
title in and to all said units and he shall thereupon hold,possess
and execute all the rights,'title, powers and duties herein conferred
upon the Trustee named herein; and the right to appoint a successor
or substitute Trustee shall exist as often and whenever from any of
said cuases any Trustee, original or substitute, cannot or will not
act, or has been,removed'without cause. The exercise or attempted
exercise of the power of sale herein contained shall not exhaust
said power of sale and shall not prevent any subsequent exercise
thereof.
It is especially agreed that, in the event of a foreclosure
under the powers granted herein, the person in possession of the
unit sold shall thereupon become the tenant -at -will of the purchaser
at such foreclosure sale, and should such tenant refuse to surren-
der possession of said unit upon demand, the purchaser shall thereupon
at his or_.her option, be entitled to institute and maintain the statutory
action for forcible detainer and procure a writ of possession there-
under. This possession shall in no wise preclude the purchaser from
bringing any other legal action for the possession of said unit and
the bringing of one character of action shall riot preclude the other
and same may be exercised separately or simultaneously.
The amount of the common expenses assessed against each condominium
unit shall also be a debt of the owner thereof at the time the
assessement is made. Suit to recover a money judgment for unpaid
common expenses shall be maintainable without foreclosing or waiving
the lien securing same.
MOM
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Any encumbrancer holding a lien on a condominium unit may pay
any unpaid common expense payable with respect to such unit, and upon
such payment such encumbrancer shall have a lien on such unit for the
amounts paid of the same rank as the lien of his encumbrance.
25. Upon the written request of any owner or.any encumbrancer or
prospective encumbrancer of a condominium unit, the Association,
by its Managing Agent or Board of Managers, shall issue a written
statement setting forth the unpaid common expenses, if any, with
respect to the subject unit, the amount of the current monthly
assessment and the date that such assessment becomes due, credit
for advanced payments or for prepaid items, including but not.
limited to insurance premiums; which shall be conclusive upon the
Association in favor of all persons who rely thereon in good faith.
Unless such request for a statement of indebtedness shall be complied
with within ten days, all unpaid common expenses which become due
prior to the date of making of such request shall be subordinate to
the lien of the person requesting such statement,
The Grantee of a unit shall be jointly and severally liable
with the Grantor for all unpaid assessments against the latter for
his proportionate share of the common expenses up to the time of
the grant or conveyance, without prejudice to the Grantee's right to
recover from the Grantor the amounts paid by the Grantee therefor;
provided, however, that upon written request, any such prospective
Grantee shall be entitled to a statement from the Managing Agent or
Board of Managers, setting'forth the amount of the unpaid assessments.,
if any, with respect to the subject unit, the amount of the current
monthly assessment and the date that such assessment becomes due,
redit for advance 'payments or for prepaid items, including but not
limited to insurance premiums, which shall be conclusive upon the
Association. Unless such request for a statement of indebtedness shall
,.be complied with within ten days of such request, then such Grantee
shall not be liable for, nor shall the unit conveyed be subject to
`,a lien for, any unpaid assessments against the subject unit.
Upon the sale or.conveyance of an apartment, all assessments
against a co-owner for his prorata share in the expenses as herein
described and levied shall first be paid out of the sales price,
or by the purchaser, in preference over any other assessments or
charges of whatever nature except the following:
(a) Assessments, liens and charges in favor of the State
and any political subdivision thereof for taxes past due and unpaid
on the apartment; and
(b) Amounts due under first mortgage instruments duly recorded.
26. Any.owner shall have the right from time to time to mortgage
or.encumber his interest by deed of trust, mortgage or other security
instrument. A first mortgage shall be one which has first and para-
mount priority under applicable law. The owner of a condominium unit
may create a second mortgage on the following conditions: (1) That
any such second mortgage shall always be subordinate to all of the
terms, conditions, covenants, restrictions, uses, limitations, obli-
gations, lien for common expenses, and other payments created by this
Declaration and by the By -Laws; (2) That the mortgagee under any second
mortgage shall release, for the purpose of restoration of -any improve-
ments upon the mortgaged premises, all of his right, title and interest.
in and to the proceeds under all insurance policies upon said premises,
which insurance policies were effected and placed upon the mortgaged
premises by the Association. Such release shall be furnished forth-
with by a second mortgagee upon written request to the Association.
27. In the event any owner of a condominium unit shall wish to
sell, lease or.rent the same, and shall have received a bonafide offer
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therefor from a prospective purchaser or tenant, the remaining
owners shall be given written notice thereof, together with an
executed copy of'such offer and the terms thereof. Such notice
and copy shall be given to the Board of Managers for all of the
owners. The remaining owners through the Board of Managers, or
a person named by them, shall have the right to purchase or lease
or rent the subject apartment upon the same terms and conditions as
set forth in the offer therefor, provided written notice of such
election to purchase or lease is given to the selling or leasing
owner, and a matching down payment or deposit isprovided to the
selling or leasing owner during the ten-day period immediately
following the delivery of the notice of the bonafide offer and copy.
.'.thereof to purchase or lease.
In the event any owner shall attempt to sell, rent, or lease
his condominium unit without affording to the other owners the
right of first refusal herein provided, such.sale or lease shall be
wholly null and void and shall confer no title or interest whatsoever
.upon the intended purchaser or lessee. Possession of or residence
in a condominium unit by any other person than the record owners,
their lineal descendants or relatives of their lineal descendants,
continuing for a period of ten (10) days, shall be deemed, for this
purpose, to constitute a leasing or renting of the condominium unit,
whether or not any consideration has been paid therefor; and in such
event, the Board of Managers may require the removal of such occu-
pant(s), it being hereby agreed that the Board of Managers, in such
event, shall be entitled to the possession of the condominium unit
upon demand therefor of and from such occupant; with or without notice
to the record owner(s) thereof; and in the event of failure to sur-
render such possession, the Board of Managers may institute and main-
tain Forcible Entry and Detainer proceedings for the possession of
such unit, and have and retain such possession until the record owner
thereof., or his purchaser (in event of sale, all prerequisites of this
declaration having been complied with) retakes physical possession of
such premises. During any time when the Board of.Managers shall have
:possession of such unit hereunder, the record owner and all of his
guests, licensees and invitees shall be deemed to waive any -claim for
damages to person.or property in or on the units.
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The sub -leasing or sub -renting of said interest shall be subject
to the same limitations as are applicable to the leasing or renting
thereof. The liability of the owner under .these covenants shall con-
tinue, notwithstanding the fact that he may have leased or rented
said interest as provided herein..
In no case.shall the right of first refusal reserved herein
affect the right of an owner to subject his interest in the project
parcel -to a trust deed, mortgage, or other security intrument.
The failure of or refusal by the Board -of Managers to.exercise
.the.ri-ght to so purchase or lease shall not constitute or be deemed
to be a waiver of such right to purchase or lease when an owner
receives any subsequent bonafide offer from a prospective purchaser
or tenant..
The provisions of this Article 27 shall not apply to any sale
lease or rental if made by Declarant at any time hereafter whether
same.be a "first sale or letting" or "resale or reletting" of an
apartment unit. Declarant shall have the further right to use any
apartment. unit as office and sales area and ,display advertising
signs at the premises at any time hereafter until all units have been
sold by Declarant.
.. The right of first refusal, as provided herein, shall extend and
run .from the date of execution of this Declaration for the period of
)P)--16 r-)
the lives of the now living descendants of H. G. Nichols, whichever
of said descendants shall live the longer, plus eighteen (18) years.
Except as is otherwise provided in paragraph 28, and except upon
a transfer of title to a Public Trustee, or to a first mortgagee,
each grantor of a condominium unit, upon transferring or conveying
his interest, shall incorporate in such instrument of conveyance'an
agreement that the grantee carry out the provisions of the "right of
first refusal" as provided in this paragraph.
28. In the event of any default on the part of any owner under
any first mortgage which entitled the holder thereof to foreclose
same, any sale under such foreclosure, including delivery of a deed
to the first mortgagee in lieu of such foreclosure shall
be made free and clear of the provisions of paragraph 27, and the
purchaser (or grantee under such deed in lieu of foreclosure) of
such condominium unit shall be thereupon and thereafter,subject to
the provisions of this Declaration and By -Laws. If the purchaser
following such foreclosure sale (or grantee under deed given in lieu
of such foreclosure) shall be the then holder of the first mortgage,
or its nominee, the said holder or nominee may thereafter sell and
convey the condominium unit free and clear of the provisions of
paragraph.27, but its grantee shall thereupon and thereafter be
subject to all of the provisions thereof.
The transfer of a deceased joint tenant's interest to the
surviving joint tenant or the transfer of a deceased's interest
to a devisee by will or his heirs at law under intestacy laws
shall not be subject to the provisions of paragraph 27.
If an owner of condominium unit can establish to the satisfaction
of the Managing Agent or Board of Managers that a proposed transfer
is not a sale or lease, then such transfer shall not be subject to
the provisions of paragraph 27..
29. Upon written request of any prospective transferor, purchser,.
tenant or an existing or prospective mortgagee of any condominium
unit, the Managing Agent or Board of Managers of the Association shall
forthwith, or where time is specified, at the end of the time, issue
a written and acknowledged certificate in recordable form, evidencing
that:
(a) With respect to a proposed lease or sale under paragraph
27, that proper notice was given by theselling or leasing owner and
that the remaining owners did not elect to exercise their option'to
purchase or lease;
(b) With respect to a deed to a first mortgagee or its nominee
in lieu of foreclosure, and a deed from such first mortgagee or
its nominee, pursuant_to paragraph 28, that the deeds were in'fact
given in lieu of foreclosure and were not subject to the provisons of
pargraph 27;
r
(c) With respect to any contemplated transfer which is not in
fact a sale or lease, that the transfer is not or will not be subject
to the provisons of paragraph 27;
Such certificate shall be conclusive evidence of the facts con-
tained therein.
30. This Declaration hereby makes mandatory the irrevocable
appointment of an attorney-in-fact to deal with the property upon
its destruction or obsolescence.
-12-
ex)
Title to any condominium unit is declared and expressly made
subject to the terms and conditions hereof, and acceptance by any
grantee of a deed from the Declarant or from any owner shall con-
stitute appointment of the attorney-in-fact herein provided. All
of the owners irrevocably constitute and appoint the non-profit
association hereinafter named, or its successor non-profit -
corporation, if same be hereafter organized, their true and lawful
attorney in their name, place and stead, for the purpose of dealing
with the property upon its destruction or obsolescence as is hereafter
provided. As attorney-in-fact, the Association, by its President
and Secretary, shall have full and complete authorization, right and
power to make, execute and deliver any contract, deed or any other
instrument with respect to the interest of a condominium unit owner
which are necessary and appropriate to exercise the powers herein
granted. Repair and reconstruction of the improvement(s) as used in
the succeeding subparagraphs means restoring the improvement(s) to
substantially the same conditions in which it existed prior to the
damage, with each unit and the general and limited common elements
having the same vertical and horizontal boundaries as before. The
proceeds of any insurance collected shall be made available to the
Association for the purpose of repair, restoration or replacements
unless the owners and all first mortgagees agree not to rebuild in
accordance with the provisions set forth hereinafter.
(a) In the event of damage or destruction due to fire or other
disaster, the insurance proceeds, if sufficient to reconstruct the
improvement(s) shall be applied by the Association, as .attorney-in-
fact, to_such reconstruction, and the improvement(s) shall be promtly
repair ed and reconstructed.
(b) If the insurance proceeds are insufficient to repair
and reconstruct the improvement(s), and if such damage is not more than
fifty (50%) percent of all of the general common elements, not includ-
ing land, such damage or destruction shall be promptly repaired and
reconstructed by the Association, as attorney-in-fact, using the pro-
ceeds of insurance and the proceeds of an assessment to be made against
all of.the owners and their condominium units. Such deficiency assess-
ment shall be a common expense made pro rata according to each owner's
percentage interest in and to the general common elements and shall
be due and payable within thirty days after written notice thereof.
The Association shall have the authority to cause the repair or restor-
ation of the improvements using all of the insurance proceeds for such.
purpose notwithstanding the failure of an owner to pay the assessment.
The assessment provided for herein shall be.a debt of each owner, and
a lien on his condominium unit and maybe enforced and collected as is
provided in paragraph 24. In addition thereto, the Association,
as attorney-in-fact, shall have the absolute right and power to sell
the condominium unit of any owner refusing or failing to pay such
deficiency assessment within the time provided, and if not so paid
the Associaiton shall cause to be recorded a notice that the condominium
..,.unit of the delifiquent owner shall be sold by the Association. The
proceeds derived from the sale of such condominium unit shall be used
and.disbursed by the Association, as attorney-in-fact, in the following
order:
(1) For payment of the balance of the' lien of any first mortgage.
.(2) For payment of taxes and special assessment liens in favor
of any assessing entity;
(3) For payment of unpaid common expenses;
(4) For payment of junior liens and encumbrances in .the order of
and to the extent of their priority; and
(c) If more than fifty (50%) percent of all of the general
common elements, not including land, are destroyed or damaged, and
if the owners representing an aggregate ownership interest of one-
half of said condominium units, or more, do not voluntarily, within
one hundred days thereafter, make provision for reconstruction, which
plan must have the unanimous approval or consent of every first mortgagee,
the Association shall forthwith record a notice setting forth such
fact or facts, and upon the recording of such notice by the Associa-
tion's president and secretary, the entire remaining premises shall
be sold by the Association, as attorney-in-fact for all of the owners,
free and clear of the provisions contained in this Declaration:, the
Map and the By -Laws. The insurance settlement proceeds shall be
collected by the Association, and such proceeds shall be divided by
the Association according to each unit owner's interest (as such
interests appear on the policy or policies) and such divided proceeds
shall be paid into as many separate account as there are units covered
by this declaration, each such accounts representing one of the condo-
minium units. Each such account shall be in the name of the Asso-
ciation, and shall be further identified by the number of the apart-
ment unit and the name of the owner. From each separate account, the
Association, as attorney-in-fact shall use and disburse the total
amount (of each) of such accounts, without contribution from any
account to another, toward the full payment of the lien of any first
mortgage against the condominium unit represented by such separate
account. There shall be added to each such account, the apportioned
amount of the proceeds derived from the sale of the entire property.
Such apportionment shall be based upon each condominium unit owner's
percentage interest in the general common elements. The total Funds
of each account shall be used and disb ursed,'without contribution
from one account to another, bythe Association, as attorney-in-
fact, for the same purposes.and in the same order as is provided in
sub -paragraph (b)(1) through (5)of this paragraph.
If the owners representing an aggregate ownership interest of
three-fourths (3/4ths) of the condominium units, or more, adopt a
plan for reconstruction, which plan has the unanimous approval of
all first mortgagees, then all of the owners shall be bound by
the terms and other provisions of such plan. Any assessment made in
connection with such plan shall be a common expense and made pro rata
according to each owner's percentage interest in the general common
elements and shall be due and payable as provided by the terms of
such plan but not sooner than thirty days after written notice thereof.
The Association shall have the authority to eause the repair or
restoration of the improvements using all of the insurance proceeds
for such purpose notwithstanding the failure of an owner to pay the
assessment. The assessment provided for herein shall be.a debt of
each owner and a lien on his condominium unit and may be enforced
and collected as is provided in paragraph 24.
In addition thereto, the Association, as attorney-in-fact, shall
have the absolute right and power to sell the condominium unit of any
owner refusing or failing to pay such assessment within the time pro-
vided, and if not so paid, the Association shall cause to be recorded
a notice that the condominium unit of the delinquent owner shall be
sold by the Association. The proceeds derived from sale of such
condominium unit shall be used and disbursed by the Association,
as attorney-in-fact, for the same purposes and in the same order
as -is provided in sub-paragraph(b)(1) through (5) of this paragraph.
(d) The owners representing an aggregate ownership interest of
three-fourths (3/4ths) of the condominium units covered by this
declaration,or more, may agree that the general common elements of
-14-
-the property are obsolete and that the same should be renewed or re
constructed. In"such instance, then the expense thereof shall be
payable by all of the owners as common expenses; provided, however.
that any owner not agreeing to such renewal or reconstruction may
give written notice to the Association that such unit shall be pur-
chased by the Association for the fair market value thereof.. If
such owner and the Association can agree on the'fair market value
thereof, then such sale shall be consummated within thirty days there-
after. If -the parties are unable to agree, the date when either
party notified the other that he or it is unable to agree with the
.other shall be the "Commencing date" from which all periods of time
.,mentioned ioned herei
n shall be measured
Within ten days following the
commencement date
each
party shall nominate in writing (and give
notice of such nomination to the other party), the appraiser who
shall be a member of the Beaumont Real Estate Board. If either
party fails to make such a nomination, -the appraiser nominated shall
within five days after default by the other party appoint and asso-
ciate with him another appraiser (to be selected from the Beaumont
Real Estate Board). If the two appraisers designated by the parties,
or selected pursuant hereto in the event of the default of one party,
are unable to agree, they shall appoint another appraiser (to be
selected from the Beaumont Real Estate Board) to be umpire between
them, if they can agree on such person. If they are unable to agree
upon such umpire, then each appraiser previously appointed shall
nominate two persons (each of whom shall be a member of the Beaumont
Real Estate Board), and from the names of the four persons so nominated
shall be drawn by lot by any judge of any court of record in Texas,
and the name.so drawn shall be the umpire. The nominations from
whom the umpire is' to be drawn by lot shall be submitted within ten
..days of the failure of the two appraisers to agree, which in any
event shall not be later than twenty days following the appointment
of second appraiser. The decision of the appraisers as to the fair
market value or -in the case of their disagreement, the decision of
the umpire, shall be final and binding. The expenses and fees of
such appraisers shall be borne equally by the Association and the
owners. The sale shall be consummated within fifteen days thereafter,
and the Association, as attorney-in-fact, shall disburse such proceeds
as is provided in sub -paragraph (b)(1) through (5) of this paragraph -
(e) The. owners representing an aggregate ownership interest of.
three-fourths (3/4ths) of the condominium units, covered.by this
"declaration, or more, may agree that the general common elements of
the property are obsolete and that the same should. be sold. In such
instance, the Association shall forthwith record a notice setting.
forth such fact or facts, and upon the recording of such notice
by .the Association's. president and secretary, the entire premises
shall be sold by the Association, as attorney-in-fact for all of the
owners, free and clear of the provisions contained in this Declara-
tion, the,Map and..the By -Laws. The sales proceeds shall be apportioned
between.the owners on"the basis of each owner's percentage interest
in the general common elements, and such apportioned proceeds shall
be paid into as many separate accounts as there are units covered by
this declaration
,.each such account representing one condominium unit.
Each such account shall be in the name of the Association, and shall
be. further identified by the number of the Apartment and the name. of
the owner. From each separate account, the Association as attorney-
in-fact, shall use and disburse the total amount (-of each). of such
funds, w
it
ho ut
contrib
ut i
n
from one
fund
to another, fo
r the same
a e
purposes and in`the same order as is provided in subparagraph (b)(1)
through (5) of this paragraph.
31. .Prior to the first conveyance of any condominium unit,
.Declarant shall execute and deliver a bill of sale to the Association,
.,transferring all items of.personal property located.on the entire
premises and furnished by Declarant, which property is intended for
the common use and enjoymentof the condominium unit owners and occu-
'pants'. The Association shall hold title to such property for the
.use and enjoyment of the condominium unit owners and occupants. No
t
owner shall have any other interest and right thereto, and all such
right and interest shall absolutely terminate upon the owner's
termination of possession of his condominium unit.
32. All notices, demands, or other notices intended to be
served upon an owner shall be sent by ordinary or certified mail,,
postage prepaid, addressed in the name of such owner in care of the
apartment number and building address of such owner. All notices,
demands, or other notices intended to be served upon the Managing
Agent, or the Board of Managers of the Association, or the Association
shall be sent by ordinary or certified mail, postage prepaid, 3679
Calder, Beaumont, Texas, until such address is changed by a notice
of. address change duly recorded.
33. If any of the provisions of this Declaration or any paragraph,
sentence, clause, phrase, or word, or the application thereof in any
circumstances be invalidated, such invalidity shall not affect the
validity of the remainder of this Declaration and the application of
any such provisions, paragraph, sentence, clause, phrase or word in
any other circumstances shall not be affected thereby.
34. The provisions of this Declaration shall be in addition and
supplemental to the Condominium Ownership Act of the State of Texas
and to all other provisions of law.
35. That whenever used herein, unless the context shall otherwise
provide, the singular number shall include the plural, the plural
the singular, and the use -of any gender shall include all genders.
EXECUTED this — �Oth day of September 1977.
NICHOLS COMPANY, A PARTNERSHIP.
By:/�w -
H. G. Nichols,Sr. . a Partner
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
BEFORE ME, the undersigned authority, on this day personally
appeared H. G. Nichols, Sr ., known to me to'be the person and partner
whose name is subscribed to the foregoing instrument, and acknowledged
to me that he executed the same as the act of NICHOLS COMPANY, a
partnership of which he is a partner, for the purposes and considera-
tion expressed and in the capacity therein stated, and that he was
authorized to do so.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 3,, -AL day of
October , 1977.
NOTARY PUBLIC IN AND FOR
JEFFERSON COUNTY, TEXAS
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M
1. The purpose for which this non-profit Association is formed
is to govern the condominium property situated in the County of Jef-
ferson, State of Texas, which property is described and depicted in
Exhibit "A", which by this reference is made a part hereof, and which,
property has been submitted to the provisions of the Condominium
Ownership Act of the State of Texas.
2. All present or future owners, tenants, future tenants, or
any other person that might use the facilities of the project in any
manner are subject to the regulations set forth,in these By -Laws.
The mere acquisition or rental of any of the condominium units
_.(hereinafter referred to as "Units") of the project or the mere act
.,.,of occupancy of any of said units will signify that these By -Laws are
.-,:accepted,,., ratified., and will be complied with.
ARTICLE II.
MEMBERSHIP, VOTING, MAJORITY OF OWNERS,
QUORUM, PROXIES
1. Membership. Any person on becoming an owner of a condominium
unit shall automatically become a member of this Association and be
subject to these By -Laws. Such membership shall terminate without
Any formal Association action whenever such person ceases to own a
.condominium unit, but such termination shall not relieve or release any
such former owner from any liability or obligation incurred under, or
in any way connected with the condominium regime established by the
foregoing declaration, during the period of such ownership and
membership in this Association, or impair the rights or remedies which
the Board of Managers or the Association or others may have against
such former owner and member arising out of or in any way connected
with such ownership and membership, and the covenants and obligations -
incident thereto. No Certificates of stock shall be issued by the
Association, but the Board of Managers may,if it so elects, issue
one membership card to the owner(s) of a condominium unit. Such
membership card shall be surrendered to the Secretary whenever owner-
ship of the condominium unit designated thereon shall terminate.
2. Voting. Voting shall be based upon the percentage of the
undivided interest of each unit owner in the general common elements.
An owner of an undivided fractional interest in and to a condominium
unit shall be entitled to a vote equal to his fractional ownership
interest in such unit. Cumulative voting is prohibited.
3. Majority of Unit Owners. As used in these By -Laws, the
term "majority of unit owners" shall mean the apartment owners with
51% or more of the votes weighted so as to coincide with the percentages
assigned in the Declaration.
4. Quorum. Except as otherwise provided in these ByLaws,,
the presence in person or by proxy of a "majority of unit owners" as
defined in paragraph 3 of this Article shall constitute a.quorum..
5. Proxies. Votes may be cast in person or by proxy.
Proxies may be filed with the Secretary before the appointed time.of
each meeting'.
ARTICLE III.
ADMINISTRATION
1. Association Responsibilities. The owners of the Units
willconstitute the.Association of Upit Owners, hereinafter referred
to as "Association," who will have the responsibility o•f administering
the project through a Board of Managers.
2. Place.of Meetings. Meetings of the Association shall be
held at such place as the Board of Managers determine.
3. Annual Meetings. The first annual meeting of the Associa-
tion shall -be held on or before one year after the date hereof.
Thereafter,'the annual meetings of the Association shall be held on
the fourth Monday of whatever month the first annual meeting is held
in, as that month comes around each succeeding year. At such meetings
there shall be elected by ballot of the owners of a Board of Managers
in accordance with the requirements of Paragraph 5 of Article IV
of these By -Laws. The owners may also transact other business of the
Association as may properly come before them.
4. Special Meetings. It shall be the .duty of the President
to call a special meeting of the owners as directed by resolution of
the Board of Managers, or upon a petition signed bya majority of
the owners and having been presented to the Secretary. The notice
of any special meeting shall state the time and place.of such
meeting and the purpose thereof. No business shall be transacted at
a special meeting except as stated in the notice unless by consent
of four-fifths of the owners present, either in person or by proxy.
5. Notice of Meetings. It shall be the duty of the Secretary.
to mail a notice of each annual or special meeting, stating the purpose
thereof, as well as the time and place where it is to be held, to
each owner of record, at least 5 but not,,more than 10 days prior to
such meeting. The mailing of a notice in the manner provided in this
paragraph shall be considered notice served.
6. Adjourned Meeting. If any meeting of owners cannot be
organized because a quorum has not attended, the owners who are
_-present, either in person or by proxy, may adjourn the meeting to a
.time not less than forty-eight hours from the time the original
meeting was called.
.7. Order of Business. The order of business at all meetings
of the owners of units shall be as follows:
(a) Roll Call .
(b) Proof of notice of meeting•or waiver of notice
(c) Reading of minutes of preceding meeting
(d) Reports of officers
(e) Reports of Committees
(f) ` Election of Managers
(g), Unfinished business
(h) New business
ARTICLE IV
BOARD OF MANAGERS
1. Number and Qualification. The affairs of this Association
shall be governed by a Board of Managers composed of three persons.
The following persons shall act in such capacity and shall manage the
affairs of the Association until one year after the date hereof,
unless all of the units of this regime are leased or.sold prior to the
.end of such year at which earlier time they.will have the option to
cease being members of the Board of Managers. or unless their successors -
axe elected prior to the .end of such year, to -wit: - H..G. Nichols,
H. G. -.Nichols, Jr., and Reed ,Nichols.
-2-
2. Powers and Duties. The Board of Managers shall have the
powers and duties necessary for the administration of the affairs
of -the Association and for the operation and maintenance of a first
class residential condominium project. The Board of Managers may
do all such acts and things as are not by these By -Laws or by the
foregoing Condominium Declaration directed to be exercised and done
by the owners.
3. Other Powers and Duties. The Board of Managers shall be
empowered and shall have the duties as follows:
(a) To administer and enforce the covenants, conditions,
restrictions, uses, limitations, obligations, and all other p'ro-
visions set forth in the Condominium Declaration submitting the
property to the provisions of the Condominium Ownership Act of the
State of Texas.
(b) To establish, make and enforce compliance with such
reasonable house rules as may be necessary.for the operation, use
and occupancy of this condominium project with the right to amend
same from time to time. A copy of such rules and regulations shall
be delivered or mailed to each.member promptly upon the adoption
thereof.
(c) To keep in good order, condition and repair all of the
general and limited common elements and all items of personal property
used in the enjoyment of the entire premises.
(d) To insure and keep insured all of the insurable general
common elements of the property in an amount equal to their maximum
replacement value as provided in the Declaration. Maximum replacement
value shall be determined annually by one or more written appraisals.
The type and kind of such insurance contracts shall be determined
by what a majority of the unit owners direct. Further, to obtain
and maintain an owners, landlord and tenant comprehensive liability
_insurance policy covering the entire premises in amounts not less
than $100,000.00 per person and $3003000.00 per accident and $50,000.00
property damages and also such other types and kinds of insurance
.covering such other risks as a majority of the unit owners shall
direct. To insure and keep insured all of the fixtures, equipment
and personal property acquired by the Association for the benefit
of the Association and the owners of the condominium units and
their first mortgagees.
(e) To fix, determine, levy and collect the monthly prorated
assessments. To levy and collect special assessments whenever in
the opinion of the Board it is necessary to so do in -,order to meet
increased operating ormaintenance expenses or costs, or additional
capital expense, or because of emergencies. All monthly or other
assessments shall be in itemized statement form and shall set forth
the detail of the various expenses for which the assessments are
being made..
(f) To collect delinquent assessments by suit or otherwise
and to enjoin or seek damages from an owner as is provided in the
Declaration and these By -Laws.
(g) To protect and defend the entire premises from loss and
damage by suit or otherwise.
(h). To borrow funds in order to pay for any expenditure
or outlay required, to execute all such instruments evidencing such
-indebtedness which shall be the serveral obligation of all of the
owners in the same proportion as their interest in the general common
elements.
(i) To enter into contracts within the scope of their -duties
and powers.
(j) To establish a bank account for the common treasury
and for all separate funds which are required, or may be deemed
advisable by the Board'of Managers.
(k) To keep and maintain full and accurate books and
records showing all of the receipts, expenses or disbursements and to
permit examination thereof at any reasonable time by each of the owners,,
and to cause a complete audit of the books and accounts by a competent
certified public accountant once each year.
(1) To prepare and deliver annually to each -owner a statement
showing all receipts, expenses or disbursements since the last such
statement.
- 3-
•
(m) To meet at least once each quarter.
(n) To designate the personnel necessary for the maintenance
and operation of the general and limited common elements.
(o) In general, to carry on the administration of this
Association and to do all of those things necessary and reasonable
in order to carry out the communal aspect of condominium ownership.
4. Managing Agent. The Managing Agent shall be Declarant
in the foregoing Declaration or whatever person or entity to whom
suchDeclarant.for purposes of resale may convey all its apartment
units in this regime which at the time of such conveyance it has not
sold to owner occupants and such Managirg Agent shall have all of the
powers and shall perform the duties of the Board of Managers -until
one year after the date hereof, unless all units in this regime are
leased or sold prior to the end of such year at which earlier time
Declarant shall have the option to cease being such Managing Agent.
Declarant will receive no compensation for serving as Managing
Agent.- Subsequent to one year after the date hereof, or subsequent
to the lease or sale of all units in this regime, whichever comes
first in time, the Board of Managers may employ for the Association
a Managing Agent at a compensation to be established by the Board
to perform such duties and services as the Board shall authorize,
including, but not limited to, the duties listed in paragraph 3 of
this Article, but such subsequently employed Managing Agent may not
be Declarant unless Declarant is to serve without compensation.
5. Election and Term of Office. At the first annual
meeting of the Association the term of office of one Manager shall
be fixed for three years. The term of office of one Manager shall
be fixed at two years, and the term of office of one Manager shall
be fixed at one year. At the expiration of the initial term of
office of each respective Manager his successor shall be elected
to serve a term of three years. The three persons acting as Managers
shall hold office until their successors have been elected and hold
their first meeting.
6. Vacancies. Vacancies on the Board of Managers caused
by any reason other than the removal of a Manager by a vote of the
Association shall be filled by vote of the majority of the remaining
Managers, even though they may constitute less than a quorum, and
each person so elected shall be a Manager until a successor is
elected at the next annual meeting of the Association.
7. Removal of Managers. At any regular or special meeting
duly called, any one or more of the Managers may be removed with or
without cause by a majority of the owners, anda successor may then
and there be elected to fill the vacancy thus created. Any Manager
whose removal has been proposed by the owners shall be given an
opportunity to be heard at the meeting.
8. Organization Meeting. The first meeting of a newly elected
Board of Managers shall be held within ten days of election at such
place as shall be fixed by the Managers at the meeting at which such
Managers were elected, and no notice shall be necessary to the newly
elected Managers in order legally to constitute such meeting, providing
a majority of the whole Board shall be present.
9. Regular Meetings. Regular meetings of the Board of Managers
may be held at such time and place as shall be determined from time
to time, by a majority of the Managers,L'but at least four such meetings
.shall be held during each fiscal year. Notice of regular meetings
of the Board of Managers shall be given to each Manager, personally
-or by mail, telephone or telegraph, at least three days prior to
the day named for such meeting.
10. Special Meeting. Special meetings of the Board of
Managers may be called by the President on three days' notice to each
Manager, given personally, or by mail, telephone or telegraph, which
notice shall state the time, place (as hereinabove provided) and
purpose of the meeting. Special meetings of the Board of Managers
m
shall be called by the President,or Secretary in like anner.and on
like notice on the written request of at least two Managers.
—4-
a
93
11. Waiver of Notice. Before or at any meeting of the Board
of Managers, any Manager may, in writing, waive notice of such meeting
and such waiver shall be deemed equivalent to the giving,:.of such notice.
Attendance by a Manager at any meeting of the Board shall be a waiver
of notice by him of the time and place thereof. If all Managers are
present at any meeting of the Board, no notice shall be required
and any business may be transacted at such meeting.
12. Board of Managers' Quorum. At all meetings of the Board
of Managers, a -majority of the Managers shall constitute a quorum for
the transaction of business, and the acts of the majority of the
Managers present at a meeting at which a quorum is present shall be
the acts of the Board "of Managers. If, at any meeting of the Board
of Managers, there be less than a quorum present, the majority of those
present may adjourn the meeting from time to time. At any such adjourned
meeting -i any business which might have been transacted at the meeting
As originally called may be transacted without further notice.
13. Fidelity Bonds. The Board of Managers may require that all
officers and employees of the Association handling or responsible for
Association funds shall furnish adequate fidelity bonds. The premiums
on such bonds shall be paid by the Association..
ARTICLE V.
OFFICERS
1. Designation. The officers of the Association shall be a
President, a Secretary, and a Treasurer, all of whom shall be elected
by and from the Board of Managers.
2. Election of Officers. The officers of the Association
.shall be elected annually by the Board of Managers at the organization
meeting of each new Board and shall hold office at the pleasure of the
.Board.
3. Removal of Officers. Upon an affirmative vote of a majority
of the -members of the Board of Managers, any officer may be removed,
either with or without cause, and hissuccessorelected at any regular
meeting of the Board of Managers, or at any special meeting of the
Board called for such purpose.
4. President. The President shall be the chief executive
officer of the Association. He shall preside at all meetings of
the Association and of the Board of Managers. He shall have all of
the general powers and duties which are usually vestedin the office
of President of an association, including, but not limited to,the
power to appoint committees.from among the owners from time to time
.as he may.in his discretion decide is'appropriate to assist in the
conduct of the affairs of the Association.
5. Secretary. The Secretary shall keep all the -minutes
of all meetings of the Board of Managers and theminutes of all
meetings of the Association; he shall have charge of such books and
papers as the Board of Managers may direct; and he shall, in general,
perform all the duties incident to the office of Secretary.
The Secretary shall compile and keep up to date at the principal
office of the Association a complete list .of members and their last
.known addresses as shown on the records of the Association. Such
list shall -also show opposite each member's name the number or other
appropriate designation of the apartment unit owned by such members
and the garage or parking space and storage space assigned for use
in connection with such apartment unit. Such list shall be open to
inspection by members and other persons lawfully entitled to inspect
the same at reasonable time during regular business hours.
6. Treasurer. The Treasurer shall have responsibility for
:Association funds and shall be responsible for keeping full and accu-
rate accounts'of all receipts and disbursements in books belonging to
the Association. 'He shall be responsible for the deposit of all monies
and other valuable effects in the name, and to the credit, of the
Association in.such depositaries, as may from time to time be designated
'by the Board of .`Managers .
16 R
ARTICLE VI.
INDEMNIFICATION OF OFFICERS AND MANAGERS
The Association shall indemnify every Manager or officer,
his heirs, executors and administrators, against all loss, costs
and expense, including counsel fees, reasonably incurred by him in
connection with any action, suit or proceeding to which he may
be made a party by reason of his being or having been a Manager
or officer of the Association, except as to matters as to which
he shall be finally adjudged in such action, suit or proceeding
to be liable for gross negligence or willful misconduct. In the
event of a settlement, indemnification shall be provided only in
connection with such matters covered by the settlement as to which
the Association is advised by counsel that the person to be indemnified
has not been guilty of gross negligence or willful misconduct in the
performance of his duty as such Manager or officer in relation to
the matter involved. The foregoing rights shall not be exclusive of
other rights to which such Manager or officer may be entitled. All
liability, loss, damage, costs and expense incurred or suffered by
the Association by reason or arising out of or in connection with
the foregoing indemnifft.cation provisions shall be treated and handled
by the Association as Common expenses; provided, however, that
nothing in this Article'VI contained shall be deemed to obligate
the Association to indemnify any member or owner of a condominium
unit, who is or has been a Manager or officerof the Association,
with respect to any duties or obligations assumed or liabilities
incurred by him under and by -virtue of the foregoing Declaration as
a member or owner of a condominium unit covered thereby.
ARTICLE VII.
OBLIGATIONS OF THE OWNERS
1. Assessments. All owners, upon completion of the purchase
thereof, or occupancy by such owner or tenant, whichever occurs
first, shall be obligated to pay the monthly assessments imposed by
the Association to meet the common expenses. The assessments shall be
made prorata according to percentage interest in and to the general
common elements and shall be due monthly in advance. A member shall
be deemed to be in good standing and entitled to vote at any annual or
a special meeting of members, within the meaning of these By -Laws,
if and only if he shall have fully paid all assessments made or levied
against him and the condominium unit owned by him.
2. Maintenance and Re 'air.
a Every owner must perform promptly at his own expense
all maintenance and repair work within his own apartment unit, which
if omitted would affect the project in its entirety, or in a part belong-
ing to other owners.
(b) All the repairs of internal installations of each unit
such as water, light, gas power, sewage, telephone, air conditioners,
sanitary installations, electrical fixtures and all other accessories,
equipment and fixtures belonging to the unit area shall be at the
expense of each unit's owner. External installations of each unit
such as electric lines, wires, conduits or systems and heating and
air conditioning systems shall be maintained by the owner of the unit
exclusively served by same. An owner shall also maintain all the
plumbing serving exclusively his apartment unit, and maintenance of
sewer lines serving more than one apartment unit and running from
the end of an apartment unit's single sewer: line to the point where
.such sewer linebecomes the property of the City of Beaumont, shall
be "common expenses".
17 7
(c) Damage to exterior doors and windows shall be repaired
by and at the expense of the owner, provided, however, if such damage
or loss is covered by insurance, such owner shall be entitled to re-
imbursement to the extent of the insurance payment. Replacement or
repair of exterior doors or windows required because of ordinary wear
and tear and deterioration shall be paid for out of the assessments
levied and collected by the Board of Managers.
(d) An owner shall be obligated to reimburse the Association
promptly upon receipt of its statement for any expenditures incurred
by it in repairing or replaing any general or limited common element
damaged by his negligence or by the negligence of his tenants or agents.
3. Mechanic's Lien. Each owner agrees to indemnify and to
hold each of the other owners harmless from any and all claims of
Mechanic's Lien filed agaist other apartment units and the appurtenant
generalcommon elements for labor, materials, services or other products
incorporated in the owner's apartment unit. In the event suit for
foreclosure is commenced, then within ninety days thereafter such owner
shall be required to deposit with the Association cash or negotiable,
securities equal to the amount of such claim, plus interest for one
year, together with the sum of One Hundred Dollars. Such sum or
securities shall be held by the Association pending -final adjudication
or settlement of the litigation. Disbursements of such funds or pro-
ceeds shall be made to insure payment of or on -account of such final
judgment or settlement. Any dificiency shall be paid forthwith by the
subject owner, and his failure to so pay shall entitle the Association
to make such payment, and the amount thereof shall be a debt of the
owner and a lien against his condominium unit, which may be foreclosed
as is provided in paragraph 24 of the Declaration.
4. General.
a Each owner shall comply strictly with the.provisions
.of the foregoing Condominium Declaration.
(b) Each owner shall always.endeavor to observe and promote
the cooperative purposes for the accomplishment of which the project
covered by the foregoing Declaration was built.
5. Use of Units - Internal Chan es.
Ta -7 All units shall be utilized for single family residential
purposes only and no unit shall be occupied other than on.a temporary
basis by more than two persons per bedroom and the occupancy by more than
such number continuing for a period of ten days shall be deemed for
this purpose to constitute permanent.occupancy.
(b)' An owner shall not make structural modifications or
alterations to his unit or installations located therein, without
previously notifying the Association in writing through the Managing
Agent, or if no Managing Agent is employed, then through the President
of the Board of Managers. The Association shall have the obligation
to answer within five days after such notice, and failure to do so
,within the stipulated time shall mean there in no objection to the
proposed modification or alteration.
(c) An owner, however, with the approval of design thereof
by the Board of Managers may install awnings-. or covers over the Patio
area assigned to, -his unit, with the cost of installation and the
maintenance thereof to be borne by such owner.
6. Use of General Common Elements and Limited Common Elements.
Each owner may use the general common elements and the limited common.,•
elements in accordance with the purpose for which they were intended
without hindering or encroaching upon the lawful rights'of the`6ther
owners.
7. Ri ht of Entry.
a An owner shall grant the right of entry to the Managing
Agent; or to any other person authorized by the Board of Managers, in
case of any emergency originating in or threatening his unit, whether
the owner is present at the time or not.
(b) An owner shall permit other owners, or their representa-
tives, when so required, to enter his unit for the purpose of perform-
ing installations, alterations or repairs to the mechanical or electri-.
cal services,'provided that requests for entry are made in advance and
_7_
that such entry is at a time convenient to the owner. In case of
an emergency, such right of entry shall be immediate.
8. Rules and Regulations.
a All owners shall promptly and completely comply with
each of the rules and regulations herein contained or hereafter
..properly adopted for the utilization of any recreational facilities
that may be afforded. All owners and their guests shall achieve
maximum utilization of such facilities consonant with the rights of
each of the other owners thereto.
(b) Nothing shall be done in any residential unit, nor
shall same be occupied or used for any purpose, nor shall any commod
fifty, product or personal property be kept therein or thereon, which
shall cause such improvements"to be uninsurable against loss by fire,
or the perils included in an extended coverage endorsement under the
rule-s of the State of Texas Insurance Commission, or which might cause
or warrant any policy or policies covering said premises to be cancelled
or suspended by the issuing Company.
.(c) Owners and occupants of units shall at all times
exercise extreme care to avoid making or permitting to be made loud
or objectionable noises, and in using or playing or permitting to be
used or played musical instruments, radios, phonographs, television
sets; amplifiers, and any other instruments or devices in such manner
as may disturb or tend to disturb owners, tenants, or other occupants
of condominium units in the condominium regime established by the
foregoing Declaration. No unit shall be used or occupied in such man-
ner as to.obstruct or interfere with the enjoyment of occupants or
.other residents of adjoining units, nor shall any nuisance, or immoral
or illegal activity be committed or permitted to occur in or on any
unit orupon any part of the common elements of the condominium regime
established by the foregoing Declaration.
(d) The common area is intended for use for the purpose of
affording vehicular and pedestrian movement within the condominium,
,.and of providing access to the units; those portions thereof adapted
therefor, for recreational use by the owners and occupants of units;
and all thereof for the beautification of the condominium and for
providing privacy for the residents. thereof through landscaping and
such other means as shall be deemed appropriate. No part of the com-
mon area shall.be obstructed so as to interfere with its use for the
purposes hereinabove recited, nor shall any part of the common area
(common elements) be used for general storage purposes after the com
pletion of the construction of the units by developer, nor anything
done theron in any manner which shall increase the rate for hazard
:,.,and liability insurance covering said area and improvements situated
thereon. Not more than two small dogs, cats, or other usual small
household pets may be kept in any unit, provided always that.such
household pets shall be allowed on the common areas only as may be
specified under reasonable rules therefor promulgated by the Board "
of Managers. Except as hereinabove stated, no animal, livestock,
birds or poultry shall be brought within "the condominium or kept in
or around any unit thereof.
(e) No resident of the condominium shall post any advertise6
ments, signs, or posters, of any kind in or on the project except as
authorized by the Association.
(f) Garages may not be converted into living areas such as
den or play rooms and they shall be used only for normal garage purposes:.
Garages and storage areas shall at all times be kept free of an
unreasonable accumulation of debris or rubbish of any kind. Garage
doors shall be opened only when passing through the garage entrances'
and they shall be closed when such passing through has been completed.
Nothing will.be put in the garage which will impede the closing of
garage doors.
' (g) Parking of automobiles or other'vehicles.shall be only
in"the",spaces designated as parking space for each unit. Owners shall
not park:a_-vehicle in-front of an apartment other than-their own for
an unreasonable length of time. No unattended automobiles or other
vehicles shall at any time be left in the alleyways or driveways or.-
streets in such manner ,as to impede the passage of traffic: or to impair
proper access to parking areas. No boats, trailers, camping trailers,
mobile homes, motor homes, or similar vehicles shall be parked, placed
or stored_ in or on the yards or streets or drivewaysin front;of or on
the sides of the units on a "Permanent Basis", which shall be taken
to.mean for any period or periods in excess of forty-eight (48) con-
se c-utive hours.
(h) No owner, resident, or lessee shall install wiring for
electrical or telephone.installation, television antennae, machines
or air conditioning units or any other devices whatsoever on the
exterior of the project or that protrude through the walls or out
of the windows, or on the roof of the project save as are expressly
in writing previously approved by the Association,
(i) No owner or other. occupant of any condominium unit shall
make-any alteration or improvement to the common elements of the
condominium or.remove any planting, structure, furnishings 'or other
.equipment or-object therefrom except with the written consent of the
Association.
9. Destruction or Obsolescence. Each owner shall, upon
becoming an owner of a condominium unit, execute a power of attorney in
favor of the Association, irrevocably appointing the Assocition his
attorney-in-fact to deal with the owner's condominium unit. upon its
:destruction or obsolescence as is provided in paragraph''.30 of the
,foregoing Condominium Declaration.
ARTICLE VIII
AMENDMENTS TO PLAN OF APARTMENT OWNERSHIP
L By-Laws. These By-Laws may be amended by the Association
at a duly constituted meeting for such purpose, and no amendment shall
take effect unless approved by owners representing at least 70% of
the aggregage interest of the undivided ownership of the general
common elements
ARTICLE IX
MORTGAGES
1. Notice of Association. An owner who mortgages his unit
shall notify the Association through the Managing Agent, if any, or the.
President. of the Board of Managers, giving the name and address of
-.his--mortgagee. The Association shall maintain such information in,
a book entitled "Mortgagees of Units".
2. Notice of Default. The Association shall give to the holder
of each first mortgage of a unit written notification of any default
by the mortgagor.of such unit in the performance of such mortgagor's
obligations under these By-Laws and said condominium Declaration which
is not cured within 60 days and the holder of each such mortgage shall
be entitled to receive such written notification. The Association
shall allow all first mortgagees of a unit to examine its books and
records.or the condominium project. The Association shall give Federal. -
Home Mortgage Corporation notice (care of the Servicer at the
Servicer's address) in writing of any loss to, or taking of, the com-
mon elements of the Condominium project if such loss or taking exceeds
$10,000..00, and of.any damage to a condominium unit covered by a
mortgage purchased in whole or in part by.Federal Home Loan Mortgage
Corporation which exceeds $1,000.00.
ARTICLE X
COMPLIANCE
These .By-Laws are set forth to comply with the requirements of
the State of Texas Condominium Ownership Act. If any of these By-
`.Laws conflict with the provisions of said statute, it is hereby
agreed and accepted that the provisions of the Statute will apply.
ARTICLE XI
This Association is not organized for profit.. No member,
member of the Board of Managers or person from whom the Association
I ., 0
may receive any property or funds shall receive or shall be lawfully
entitled to receive any pecuniary profit from the operation thereof,
and in no event shall any part of the funds or assets of the Association
be paid as salary or compensation to, or distributed to, or inure to
the benefit of any member of the Board of Managers; provided, however,
always (1) that reasonable compenstion may be paid to any member other
than Declarant, H. G. Nichols, Sr., H. G. Nichols, Jr., or Reed Nichols
while acting as an agent or employee of the Association for services
rendered in effecting one or more of the purposes of the Association,
and (2) that any member of the Board of Managers may, from time to
time, be reimbursed for his actual and reasonable expenses incurred
in connection with the administration of the affairs of the Association.
ARTICLE XII.
The Registered office and the principal office for the transaction
of business of this Association shall be 3679 Calder Ave., Beaumont,
Texas, and the Resgistered Agent shall be H. G. Nichols at the same
address.
ARTICLE XIII
The persons who shall, be authorized to execute any and all
instruments of conveyance or encumbrances, including promissory notes,
shall be the President and the Secretary of the Association.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands and' seals, at Beaumont, Texas, this 30th day of
Seotember .
BOARD. OF MANAGERS
H. G.�Nihols, // H. G. Nichols, J
ed Nichols
NICHOOLLSS COMPANY, A PARTNERSHIP
H. G. NICHOLS, SR., a Partner
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T
F,xbC
CONDOMINIUM DECLARATION
FOR
MARSHALL PLACE TOWNHOUSES
SECTION FOUR
KNOW ALL.MEN BY THESE PRESENTS:
-} 1
THAT WHEREAS, Nichols Company, a partnership, hereinafter
called "Declarant"., is the owner of real property situated in the
County of Jefferson, State of Texas, being described as follows:
Lot Eight (8) in Block Four (4) of the MARSHALL
PLACE, UNIT II, ADDITION to the City of Beaumont,
Jefferson County, Texas, as per map or plat
thereof of record in the office of the County
Clerk of Jefferson County, Texas, reference to
which is hereby made for all purposes;
which property is described and depicted on the Map or Plat thereof
prepared by.Schaumburg & Polk, Inc., dated
marked MARSHALL PLACE TOWNHOUSES, SECTION FOUR EXHIBIT A which,
by this reference is made a part hereof; and
WHEREAS, Declarant, as Developer, desires to establish a
condominium regime under the Condominium Act of the State of Texas;
and
WHEREAS, Declarant has executed plans.for the construction of
Two (2) two-story buildings and One (1) one-story building and other
improvements appurtenant thereto on the property described in said°
Exhibit "A", which when completed shall consist of seventeen (17)
separately designated condominium units; and
WHEREAS, -Declarant does hereby establish a plan for the
individual ownership in fee simple ofestates consisting of the
,area or space contained in each of the apartment units,in the Three
(3) building improvements and the ownership by the individual and
separate owners thereof, as tenants in common of all of the remaining
,property which is hereinafter defined and referred to as ..the general
common.elements
1. DEFINITIONS, unless the context shall expressly provide other-
wise.
(a) "Apartment" or "Apartment Unit" means an individual air
space unit which is contained within the perimeter walls, floors
and ceilings of a building as shown on said map.
(b) "Condominium Unit" means one individual air space
unit, together with the interest in the general common elements
appurtenant to such unit.
(c) "Owner" means a person, firm, corporation, partnership,
association or other legal entity, or any combination thereof, who
owns one or more condominium units.
(d) "Majority of Unit Owners" means the apartment owners with
51% or more of the votes weighed so as to coincide with percentages
assigned in this declaration.
(e) "General Common Elements" means and includes:
(1) The land on which the buildings are located;
(2) The foundation, columns, girders, beams, supports,
main walls and roofs;
(3) The common green areas, yards, gardens, parking
area, fences, storage spaces, private streets,
private service drives, walks and service easements;
(4) The installations consisting of the equipment
and materials making up central services such
as power, light, gas and the like;
(5) All other parts of the property necessary or
convenient to its existence, maintenance and
safety, or normally in common use.
(f) "Limited Common Elements" means a part of the general
common elements reserved for the exclusive use of the owner of a
condominium unit; the heating and air conditioning systems serving
one condominium unit only and garage parking areas and patio areas
indicated on map as appurtenant limited elements to a specific
unit only shall be deemed limited common elements.
(g) "Entire premises" or "property" means and includes the
land, the building, all improvements and structures thereon, and all
rights, easements and appurtenances belonging thereto.
(h) "Common expenses" means and includes:
('1) All sums lawfully assessed against the general
common elements by the Managing Agent or Board
of Managers;
(2) Expenses of administration and management, maintenance
repair or replacement of the general common elements;
(3) Expenses agreed upon as. common expenses by the owners;
(4) Expenses declared common expenses by provisions of
this Declarationand by the By -Laws;
(5). Special assessements for capitol improvements to, and
extraordinary maintenance and repair of, all private
streets within the entire premises;
(6) A monthly assessment for each owner's pro -rata share
of the monthly utilities which may be metered or sold
to the condominium regime as a unit;
(7). Special assessments for ordinary maintenance and
repair, as well as special assessments for extraordi-
nary maintenance and repair, as well as capital
improvements for, all sewage, collection systems and
water lines shared in common by, and servicing in
common, all owners within the condominium regime which
are not dedicated to, and accepted by, the City of
Beaumont and which are in easements so dedicated and
accepted.
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i L c
(i) "Association of Unit Owners" or "Association" means
a Texas Non-profit association,the By -Laws of which shall govern
.the.administration of this condominium property, and which shall
have the obligation to reasonably maintain and repair private streets
and sewage collection systems and water lines shared in common by
all of the owners of the condominium units, the members of which
shall be all of the owners of the condominium units.
(j) "Map", "Survey Map", or "Plans" means and includes the
engineering survey of the land locating thereon all of the improve-
ments, the floor and elevation plans and any other drawings or
'diagrammatic plan depicting -a part of or all of the improvements,
same being herewith filed, consisting of one (1) sheet labeled
Exhibit "A", and incorporated herein.
2. The map shall be filed for record simultaneously with the
recording of this Declaration as a part hereof, and prior to the
first conveyance of any condominium unit. Such map shall consist of
and set forth (1) the legal description of the surface of the land;
(2) the linear measurements and locations, with reference to the
exterior boundaries of.the land, of the buildings and all other
improvements built or to be built on said land by Declarant; and
(3) floor plans and elevation plans.of the buildings built or to
be built thereon showing the location, the building designation,,
the apartment designation and the linear dimensions of each apartment
unit, and the limited common elements.
3.• The real property is hereby divided in the following
separate fee simple estates:
(A) Seventeen (17) fee simple estates consisting of Seventeen
(17) separately designated apartment units, each such unit identified
by' number and by building symbol or disignation on the map, the apart-.
<:ments in each building being described as follows:
BUILDING A - Containing Five apartments, numbered 'Units
is 2, 3, 4, and 5, the size, dimensions, location and
boundaries of each being detailed on the survey plat
herewith filed marked Exhibit "A".
BUILDING B - Containing Six apartments, numbered Units
6, 7, 8, 9, 10, and 11; the size, dimentions, location
andboundaries of each being detailed on the survey plat
herewith filed marked Exhibit "A".
BUILDING C - Containing Six apartments numbered Units
12, 13, 14, 15, 16, and 17, the size, dimensions, location,
and boundaries of each bung detailed on the survey plat
herewith filed marked Ex4bit "All.
(B) The remaining portion of the entire premises, referred
: to ..as the general common elements, Which shall be held in commoIn by thp.
owners, the interest of each therein being hereinafter set forth
.and each undivided interest being appurtenant to one of .the Seven-
teen (17) apartment units.
(C),. The percentage of ownersh�p.in the common Elements allocated
to each apartment is as follows:
-3-
z is
Unit
Number
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
Building
Designation
A
A
A
A
A
B
B
B
B
B
B
C
.0
C
C
C
C
_Percentage of
.. • .Owrie•rsh•ip'
4. A portion of the general common elements isset aside and
reserved for the exclusive use of individual owners, such areas
being the limited common elements. The limited common elements
reserved for the exclusive use of the individual owners are the
automobile parking spaces, storage spaces and patio spaces, which
are shown on the map. Such spaces are allocated and assigned by the
declarant to the respective condominium units as indicated on said
Exhibit "A", the patios assigned to each apartment unit being desig-
nated by the apartment unit number preceded by theletter "P" and in
a like manner the garage assigned to each.apartment unit being desig-
nated by the apartment unit number preceded by the letter "G". In
like manner, heating and air conditioning systems serving only one
condominium unit shall be limited common elements. Such limited
common elements shall be used in connection with the particular
apartment unit, to the exclusion of the use thereof by the other
owners,except by invitation.
5. Each apartment and its undivided interest in and to the
general common elements appurtenant thereto shall be inseparable and
may be conveyed, leased or encumbered only as a condominium unit.
6. Every deed, lease, mortgage, trust deed or.other instrument'
may legally describe a condominium unit by its identifying apartment
number and building symbol or designation as shown on the map
followed by the words, "MARSHALL PLACE TOWNHOUSES, SECTION FOUR"
and by reference to this recorded Declaration and Map. Every such
description shall be deemed good and sufficient for all purposes to
convey, transfer, encumber or otherwise affect the general common
e le mbnt s .
7. Declarant shall give written} notice to the tax assessors of
the creation of condominium ownership of this property, as is provided
by law, so that each apartment unit and its percentage of undivided
interest in the general common elements shall be deemed a separate
parcel and subject to seprate assessment and taxation.
8. A condominium unit may be held and owned by more than one
person as joint tenants, or as tenants in common, or in any real
property tenancy'.relationship recognized under the laws of the State
.of Texas,
9. The general common elements shall be owned in common by all
of the owners of the apartment units and shall remain undivided and
no owner shall bring any action for partition or division of the
general common elements. Nothing contained herein shall be construed
as a limitation of the right of partition of a condominium unit between
the owners thereof, but such partition shall not affect any other
condominium unit.
10. Each owner shall be entitled to exclusive ownership and posses-
sion of his apartment. Each owner may use the general common elements
in accordance with the purpose for which they are intended, with-
out hindering or encroaching upon the lawful rights of the other
owners.
11. Each apartment shall be occupied and used by the owner only
as and for a single family residential dwelling for the owner, his
family, his social guests or his tenants.
12. If any portion of the general common elements encroaches
upon an apartment unit or units, a valid easement for the encroachment
and for the maintenance of same, so long as it stands, shall and does
exist. If any portion of an adjoining apartment unit or units encroaches
upon any portion of the general common elements, a valid easement
for the encroachment and for the maintenance of same, so long as it
stands, shall and does exist. For title or other purposes, such
encroachment(s) and easement(s) shall not be considered or determined
to be encumbrances either on the general common elements or the apart-
ment units.
13. Subsequent to the completion of the improvements described
on the map, no labor performed or materials furnished and incorporated
in an apartment unit with the consent or at the request of the owner
thereof, or his agent or his contractor, or subcontractor, shall be
the basis for filing of a lien against the general common elements
owned by such other owners. Each owner shall indemnify and hold
harmless each of the other owners from and against all liability
arising from the claim of any lien against the apartment unit of any
other owner, or against the general common elements for construction
performed, or for labor, materials, services or other products in-
corporated in the owner's apartment unit at such owner's request.
14. The. -administration of this condominium property shall be
governed by By -Laws of the non-profit association, hereinafter named
and hereinafter referred to as the "Association." A copy of such
"By -Laws" is hereto attached in Exhi,bdt .B here -of, which Exhibit B is
incorporated herein by reference; and shall be deemed adopted by
Declarant as sole owner of the property herein described, and all
owners shall be bound thereby. Declarant may, at its election,
cuase to be formed a Texas non-profit corporation bearing said name,
in which event such non-profit corporation shall be composed of
owners of condominium units as herein set out, and.such non-profit
corporation shall thereafter act and do things to be done by
"Association," and the said non-profit corporation, if formed, shall
be bound by, adopt and observe as its B,y-Laws, the said By -Laws hereto
attached. "Association" as here used shall refer to the member owners
as a group, both before and after incorporation.. In the event of
incorporation, a certified copy of the Certificate of Incorporation
of such "Association" shall be recorded and which shall provide that
three persons shall act as a Board of Managers and shall serve as the
Managers until their successors have been elected and qualified. An
owner of a condominium unit, upon becoming an owner, shall be a mem-
ber of the "Association" and shall remain a member for the period of
his ownership. The Managing Agent shall be Declarant or whatever
person or entity to whom Declarant for purposes of resale may convey
all its apartment units in this regime which at the time of such
conveyance it has not sold to owner occupants, and the Managing Agent
shall perform all of the duties of the Board of Managers until one
year after the execution hereof, unless all of the units in this.
regime are leased or sold prior to the end of such year at which
-5-
earlier time Declarant shall have the option to cease being such
Managing Agent.
15. The owners shall have the irrevocable right, to be exercised
by the Managing Agent, or Board of Managers of the Association, to
have access to each apartment unit from time to time during reasonable
hours as may be necessary for the maintenance, repair or replacement
of any of the general common elements therein or accessible therefrom,
or for making emergency repairs therein necessary to prevent damage
to the general or limited common elements or to another apartment
unit or units.
16. An owner shall maintain and keep in repair the interior of
his own apartment, including the fixtures thereon. An owner shall
also maintain all electric lines, wires, conduits or systems and the
heating and air conditioning system serving his apartment unit,
whether within or without same. An owner shall also maintain all the
plumbing serving his apartment unit, and maintenance of sewer lines
serving more than one apartment unit and running from the end of
an apartment unit's single sewer line"to the point where such sewer
line becomes the property of the City of Beaumont shall be "common
expenses". .
17. An owner shall do no act nor any work that will impair the
structural soundness or integrity of the building or impair any ease-
ment or hereditament. No owner shall in any way alter, modify, add
to or.otherwise perform any work whatever upon any of the common
elements, save with written consent of the Board of Managers first
obtained.
18. An owner shall not be deemed to own the undecorated and/or
unfinished surfaces of the perimeter walls, ground floor and roof
surrounding his apartment unit, nor shall such owner be deemed to
own the utilities running through his apartment unit which are utilized
for or serve more than one apartment unit, except as a tenant in common.
An owner, however, shall be deemed to own and shall maintain the inner
decorated and/or finished surfaces of the perimeter and interior walls,
floors, ceilings, doors, windows and such other elements consisting
of paint, wall paper and other such finishing materials.
19. Each owner shall comply strictly with the provisions of this
Declaration, the By -Laws and the decisions and resolutions of the
"Association" adopted pursuant thereto as the same may be lawfully
amended from time to time. Failure to comply with any of the same
shall be grounds for an action to recover sums due for damages or
injunctive relief or both, maintainable by the Managing Agent or
Board of Managers on behalf of the owners or, in a proper case, by
an aggrieved owner.
20. This Declaration shall not be revoked, nor shall any of the
provisions herein be amended unless all of the owners of Condominium
Units, and all of theholders of any recorded mortgages or Deeds of
Trust covering or affecting any or all condominium units unanimously
consent and agree to such revocation or amendments by instrument(s)
duly recorded.
21. The assessments made shall be based upon the cash requirements
deemed to be such aggregate sum as the Managing Agent or Board
of Managers of the Association shall from time to time determine
is to be paid by all of the owners, including Declarant, to provide
for the payment of all estimated ''common"expenses" as that phrase is
defined above growing out of or connected with the maintenance and
the operation of thegeneral common elements, which sum may include,
among other things, cost of management, taxes, assessments, insurance
contracts purchased pursuant to the terms hereof insuring the buildings
and the owners thereof,and their mortgagees against such risks as
may be insured against under the terms hereof, landscaping and care
of grounds, common lighting, repairs, and renovations, garbage collections,
wages, water charges, legal and accounting fees, management fees,.
-6-
expenses and liabilities incurred by the Managing Agent or Board of
Managers under or by reason of this Declaration, the payment of any
deficit remaining from a previous period, the creation of a reasonable
contingency or other reserve or surplus funds as well as other
costs and expenses relating to the general common elements. The
omission or failure of the Board to fix the assessment for any month
shall not be deemed a waiver, modification or a release of the owners
from the obligation to pay.
The Managing Agent or Board of Managers shall obtain and maintain
insurance of the type and kind required by a majority of the unit owners,
issued by a responsible insurance company authorized to od business
in the State of Texas or by more than one responsible insurance
company authorized to do business in the State of Texas should the
same not be available for purchase from one such company and such
insurance may be written in the name of the Managing Agent or in the
name of the Board of Managers, as Trustee or Trustees for each apart-
ment owner and each apartment owner's mortgagee, if any., or it may be
written in such other names as a majority of the unit owners may direct.
Such insurance shall not prejudice the rights of each owner to insure
his apartment on his own account and for his own benefit. The "Asso-
ciation" may also be named in such insurance policy or policies as
insureds if required by the insuring company or companies. Such
insurance shall provide for a standard, non-contributory mortgagee
clause in favor of each first mortgagee. It shall also provide that
it cannot be cancelled by either the insured or the insurance company
until after ten days prior written notice to each first mortgagee.
Said Managing Agent or Board of Managers shall, upon request of any
first mortgagee, furnish a certified copy of such policy and the
separate certificate identifying the interest of the mortgagor. All
policies of insurance shall provide that the insurance thereunder
shall be invalidated or suspended only in respect to the interest of
any particular owner guilty of a breach of warranty, act, omission,
negligence or non-compliance of any provision of such policy, including
payment of the insurance premium applicable to that owner's interest,
or who permits or.fails to prevent the. happening of any event, whether
occurring before or after a loss, which under the provisions of such
policy would otherwise invalidate or suspend the entire policy, but
the insurance under such policy, as to the interests of all other
insured owners not guilty of any such act or omission, shall not be
invalidated or suspended and shall remain in full force and effect.
Determination of maximum replacement value of all condominium units
(for insurance purposes) shall be made annually by one or more written
appraisals, copies of which shall be furnished forthwith to each mort-
gagee of a condominium unit. In addition, each owner shall be notified
of such appraisal.(s).
22. All owners shall be obligated to pay the estimated assess-
ments.imposed by the Board of Mangers or Managing Agent of the Asso-
ciation to meet the common expenses and by acceptance of a deed for a
unit whether expressly stated in such deed or not, shall be deemed -
to convenant and agree to pay to the Association of Unit Owners the
assessments provided for herein. Except for insurance premiums,
the assessments shall be made basically pro rata according to each
owner's percentage interest in and to the general common elements,
but not necessarily in such exact proportion if the Board of Mangers
deem such improper or unfair. Assessments for insurance premiums
shall be based upon the proportion of the total premium(s) that the
insurance carried on a condomium unit bears to total coverage. Assess-
ments for the estimated common. expenses, including insurance, shall
be due monthly in advance on or before the fifth day of each month.
Failure to pay by the fifteenth day of each month shall require the
imposition and assessment of a late charge of $5.00. The Managing
Agent or Board of Managers shall prepare and deliver, or mail, regu-
larly at least.every three months to each owner an itemized statement
-7-
showing the various estimated or actual expenses for which the
assessments are made.
Declarant shall not be liable for assessments prior to the sale
or lease of all units.
Contribution for monthly assessments shall be prorated if the
ownership of a condominium unit commences on a day other than on
the first day of the month.
23. No owner may exempt himself from liability for his contri-
bution towards the common expenses by waiver of the use or enjoyment
of any of the general or common elements or by abandonment of his
apartment.
24. All sums assessed but unpaid for the share of common expenses
chargeable to any condominium unit, including interest thereon at
ten percent per annum, shall constitute a lien on such unit superior
(prior) to all other liens and encumbrances, except only for:
(a) Tax and Special assessment liens in favor of any assessing
-unit, and
(b) All sums unpaid on a first mortgage or first deed of trust
of record, including all unpaid obligatory sums as may be
provided by such encumbrances, and including additional
advances made thereon prior to the arising of such a lien.
To evidence such lien the Board of Managers or Managing Agent
may, but shall not be required to, prepare a written notice setting
forth the amount of such unpaid indebtedness, the name of the owner
of the condominium unit and a description of the condominium unit.
Such a notice shall be signed by one of the Board of Managers or
by the Managing Agent and may be recorded in the office of the Clerk
and Recorder of Jefferson County, Texas. Such lien for the common
expenses shall attach from the date of the failure of payment of the
assessment.
Such lien may be enforced by foreclosure of the defulting owner's
condominium unit by the Association in like manner as a mortgage on
real property upon the recording of a notice or claim thereof. In
any such foreclosure, the owner shall be required to pay the costs
and expenses of such.proceedings, the costs and expenses for filing
the notice or claim of lien and all reasonable attorney's fees. The
owner shall also be required to pay to the Association a reasonable
rental for the condominium unit during the period of foreclosure,
and the Association shall be entitled to a receiver to collect the
same. The Association shall have the power to bid in the condominum
unit at foreclosure sale and to acquire and hold, lease, mortgage
and convey same.
To secure and enforce the payment of said assessments, and for the,
auxiliary and --cumulative enforcement of said lien hereinabove created,
Declarant has.granted, sold and conveyed and by these presents does
grant, sell and convey unto Morris Beck, Trustee, of Jefferson County,
Texas, and his substitute or successors, each of the hereinbefore
described condominium units. To have and to hold the said premises,
together with the rights, privileges and appurtenances unto the said
Trustee, and to his substitutes or successors forever. And Declarant
does hereby bind itself, its successors and assigns, to warrant and
forever defend the said premises unto the said Trustee, his substitutes,
successors and assigns forever, against the claim or claims of all
persons claiming or to claim the same, or'any part thereof, for and
upon the following trusts, terms, covenants and agreements, to -wit:
L
!Jz LY�-1�%flA7
Declarant, its successors and assigns may hereafter become justly
indebted to the Association for the hereinbefore mentioned assessments
and should Declarant, its successors and assigns do and perform all of
the covenants and agreementsherein contained and make prompt payment
of the assessments hereby secured as the same shall become due and
payable, then this conveyance shall become null and void and of no
further force and effect; but in the event of default in the payment
of any assessment hereby secured, in accordance with the terms hereof
it shall thereupon, or any time thereafter, be the duty of the Trustee,
or his successor or substitute, at the request of the Association
(which request is hereby conclusively presumed) to enforce this trust
and make sale of the condominium unit against which the assessment is
made, as provided in Article 3810, Revised Civil Statutes of Texas
1925, after notice as provided in said Article (but without any other
notice than is required by said Article 3810), and make due conveyance
to the purchaser or purchasers, with general warranty binding the
Declarant, its successors and assigns; and out of the money arising
from such sale, the Trustee acting shall first pay all expenses of
advertising said sale and making the conveyance, and then to the
Association the full amount of assessments owing, interest thereon,
and reasonable attorney'.s fees, rendering the balance of the sales
price, if any, to the owner of such unit prior to such sale, his heirs
or assigns; and the recitals in the conveyance to said purchaser or
purchasers shall be full and conclusive evidence of the truth of the
matters therein stated, and all prerequisites to said sale shall be
presumed to have been performed and such sale and conveyance shall be
conclusive against the owner of such unit prior to such sale, his
heirs and assigns.
In case of the absence, resignation, death, inability, failure
or refusal of the Tru3tee herein named or of any substitue. Trustee
appointed hereunder to act, or in the event the Association shall
deem:it desirable to remove without cause the Trustee or any substi-
tute.Trustee and appoint another to execute this trust, then in any
of such events the Association shall have the right and is hereby
authorized and empowered to appoint a successor and substitute without
any formality other than an appointment and designation in writing;
and this appointment shall vest in him, as -Trustee, the estate and
title in and to all said units and he shall thereupon hold,possess
and execute all the rights, title, powers and duties herein conferred
upon the Trustee named herein; and the right to appoint a successor
or substitute Trustee shall exist as often and whenever from any of
said cuases any Trustee, original or substitute, cannot or will not
act, or has been removed without cause. The exercise or'attempted
exercise of the power of sale herein contained shall not exhaust
s
aidowe
p r of sale and shall not prevent any subsequent exercise
thereof.
It is especially agreed that, in the event of a foreclosure
under the powers granted herein, the person in possession of the
unit sold shall thereupon become the tenant -at -will of the purchaser
at such foreclosure sale, and should such tenant refuse to surren-
der possession of said unit upon demand, the purchaser shall thereupon
at his or;her option, be entitled to institute and maintain the statutory
action for forcible detainer and procure a writ.of possession there-
under. This possession shall in no wise preclude the purchaser from
bringing any other legal action for the possession of said unit and
the bringing of one character of action shall not preclude the other
and same may be exercised separately or simultaneously..
The amount of the common expenses assessed against each condominium
unit shall also be a debt of the owner thereof at the time the
assessement is made. Suit to recover a money judgment for unpaid
common expenses shall be maintainable without foreclosing or waiving
the lien securing same.
r
Any encumbrancer holding a lien on a condominium unit may pay
any unpaid common expense payable with respect to such unit, and,
upon
.,,.such payment such encumbrancer shall have a lien on such unit for the
amounts paid of the same rank as the lien of his encumbrance.
25. Upon the written request of any owner or.any encumbrancer or
prospective encumbrancer of a condominium unit, the Association,
-by its Managing Agent or Board of Managers, shall issue a written
statement setting forth the unpaid common expenses, if any, with
respect to the subject unit, the amount of the current monthly
assessment and the date that such assessment becomes due, credit
for advanced payments or for prepaid items, including but not
limited to insurance premiums, which shall be conclusive upon the
,Association in favor of all persons who rely thereon in good faith.
Unless such request fora statement of indebtedness shall be complied
with within ten days, all unpaid common expenses which become due
prior to the date of making of such request shall be subordinate to
the lien of the person requesting such statement.
The Grantee of a unit -shall be jointly and severally liable
with the Grantor for all unpaid assessments against the latter for
his proportionate share of the common expenses up to the time of
the grant or conveyance, without prejudice to the Grantee's right to
re
grove
rfrm
o the Grantor the amounts paid by the Grantee therefor;
provided, however, that upon written request, any such prospective
Grantee shall be entitled to a statement from the Managing Agent or
Board of .Managers, setting�`forth the amount of the unpaid assessments.,
if any, with respect to the subject unit, the amount of the current
monthly assessment and the date that such assessment becomes due,
redit for advance payments or for prepaid items, including but not
limited to insurance premiums, which shall be conclusive upon the
Association. Unless such request for a statement of indebtedness shall
be complied. -with within ten days of such request, then such Grantee
shall not be.liable for, nor shall the unit conveyed be subject to
alien for, any unpaid assessments against the' subject unit.
Upon the sale or conveyance of an apartment, all assessments
against a co-owner for his prorata share in the expenses as herein
described and levied shall first be paid out of the sales price,
or by the purchaser, in preference over any other assessments or
charges of whatever nature except the following:
(a). Assessments, liens and charges in favor of the State
and any political subdivision thereof for taxes past due and unpaid
on the apartment; and
(b). Amounts due under first mortgage instruments duly recorded.
26: Any owner shall have the right from time to time to mortgage
or .encumber his interest by deed of trust, mortgage or other security
instrument. A first mortgage shall be one which has first and para-
mount priority under applicable law. The owner of a condominium unit
may create a second mortgage on the following conditions: (1) That
any such second mortgage shall always be subordinate to all of the
terms, conditions, covenants, restrictions, uses, limitations, obli-
gations, lien for common expenses, and other payments created by this
Declaration and by the By -Laws; (2) That.the mortgagee under any second
mortgage shall release, for the purpose of restoration of -any improve-
ments upon.the mortgaged premises, all of his right, title and interest
in and to the proceeds under all insurance policies upon said premises,
which insurance policies were effected and placed upon the mortgaged
premises by the Association. Such release shall be furnished forth-
with by,a second mortgagee upon written request to the Association.
27, In the event. any owner of'a condominium unit shall wish to
sell, lease or rent the same, and shall have received a bonafide offer --
_10-
therefor from a prospective purchaser or tenant, the remaining
owners shall be given written notice thereof, together with an
executed copy of such offer and the terms thereof. Such notice
and copy shall be given to the Board of Managers for all of the
owners. The remaining owners through the Board of Managers, or
a person named by them, shall have the right to purchase or lease
or rent the subject apartment upon the same terms and conditions as
set forth in the offer therefor, provided written notice of such
election to purchase or lease is given to the selling or leasing
.owner, and a matching down payment or deposit is provided to the
selling or leasing owner during the ten-day period immediately
following the delivery of the notice of thee-bonafide offer and copy
-thereof to purchase or lease.
T
In the event any owner shall attempt to sell, rent, or lease
his condominium unit without affording to the other owners the
right of first refusal herein provided, such sale or lease shall be
wholly null and void and shall confer no title or interest whatsoever
upon the intended purchaser or lessee. Possession of or residence
in a condominium unit by any other person than the record owners,
their lineal descendants or relatives of their lineal descendants,
continuing for a period of ten (10) days, shall be deemed, for this
purpose, to constitute a leasing or renting of the condominium unit,
whether or not any consideration has been paid therefor;. and in such
event, the Board of Managers may require the removal of such occu-
pant(s), it being hereby agreed that the Board of Managers, in such
event-, shall be entitled to the possession of the condominium unit
upon demand therefor of and from such occupant, with or without notice
to the record owner(s) thereof; and in the event of failure to sur-
render such possession, the Board of Managers may institute and main-
tain Forcible Entry and Detainer proceedings for the possession of
such unit, and have and retain such possession until the record owner -
thereof, or his purchaser (in.event of sale, all prerequisites of this
declaration having been complied with) retakes physical
possession of
such premises. During any time when the Board
of Managers a rs shall have
possession of such unit hereunder, the record -owner and all of his
guests, licensees and invitees shall be deemed to waive any claim for
damages s t o person on o
r property y in or
on the units.
1.
The sub -leasing or sub -renting of said interest shall be subject
to the same limitations as are applicable to the leasing or renting
thereof. The liability of the owner under these covenants shall con-
tinue, notwithstanding the fact that he may have leased or rented
said interest as provided herein.
In no case shall the right of first refusal reserved herein
affect the right of an owner to subject his interest in the project:
parcel to a trust.,deed, mortgage, or other security intrument.
The failure of or refusal by the Board of Managers to exercise
the right to so purchase or lease shall not constitute or be deemed
to be a waiver of such right to purchase or lease when an owner
receives any.subsequent bonafide offer from a prospective purchaser
or tenant.
-The provisions of this Article 27 shall not apply to any sale
lease or rental if made by Declarant at any time hereafter whether
same be a "first sale or letting" or "resale or reletting" of an
apartment unit. Declarant shall have the further right to use any
apartment unit as office and sales area and display advertising
signs.at the premises at any time hereafter until all units have been
sold.by.Declarant.
The right of first refusal, as provided herein, shall extend and
run from the date of execution of this Declaration for the period of
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gv2_ _ °)i)-.re)6'
the lives of the now living descendants of H. G. Nichols, whichever
of said descendants shall live the longer, plus eighteen (18) years.
Except as is otherwise provided in paragraph 28, and except upon
a transfer of title to a Public Trustee, or to a first mortgagee,
each grantor of a condominium unit, upon transferring or conveying
his interest, shall incorporate in such instrument of conveyance'an
agreement that the grantee carry out the provisions of the "right of
first refusal as provided in this paragraph.
28. In the event of any default on the part of any owner under
any first mortgage which entitled the holder thereof to foreclose
same, any sale under'such foreclosure, including delivery of a deed
to the first mortgagee in lieu of such foreclosure shall
be made free and clear of the provisions of paragraph 27, and the
purchaser (or grantee under such deed in lieu of foreclosure) of
such condominium unit shall be thereupon and thereafter,subject to
the provisions of this Declaration and By -Laws. If the purchaser
following such foreclosure sale (or grantee under deed given in lieu
of such foreclosure) shall be the then holder of the first mortgage,
or its nominee, the said holder or nominee may thereafter sell and
convey the condominium unit free and clear of the provisions of
paragraph 27, but its grantee shall thereupon and thereafter be
subject to all of the provisions thereof.
The transfer of a deceased joint tenant's interest to the
surviving joint tenant or the transfer of 'a deceased's interest
to a devisee by will or his heirs at law under intestacy.laws
shall not be subject to the provisions of paragraph 27.
If an owner of condominium unit can establish to the satisfaction
of the Managing Agent or Board of Managers that a 1.proposed transfer
is not a sale or lease, then such transfer shall not be subject to
the provisions of paragraph 27..
29. Upon written request of any prospective transferor, purchser,
tenant or an existing or prospective mortgagee of any condominium
unit, the,Managing Agent or Board of Managers of the Association shall
forthwith, or where time is specified, at the end of the time, issue
a written and acknowledged certificate in recordable form, evidencing
that:
(a) With respect to a proposed lease or sale under paragraph
27, that proper notice was given by theselling or leasing owner and,
that the remaining owners did not elect to exercise their option to
purchase or lease;
(b) With respect to a deed to a first mortgagee or its nominee
in lieu of foreclosure, and a deed from such first mortgagee or
its nominee, pursuant to paragraph 28, that the deeds were in fact
given in lieu of foreclosure and were not subject to the provisons of
pargraph 27;
(c) With respect to any contemplated transfer which is not in
fact a sale or lease, that the transfer is not or will not be subject
to the provisons of paragraph 27;
Such certificate shall be conclusive evidence of the facts con-
tained therein.
30. This Declaration hereby makes mandatory the irrevocable
appointmentof an attorney-in-fact to deal with the'propertyt.upon
its destructionor obsolescence.
-12-
Title to any condominium unit is declared and expressly made
subject to the terms and conditions hereof, and acceptance by any
grantee of a deed from the Declarant or from any owner shall con-
stitute appointment of the attorney-in-fact herein provided. All
of the owners irrevocably constitute and appoint the non-profit.
association hereinafter named, or its successor non-profit
corporation, if same be hereafter organized, their true and lawful
attorney in their name, place and stead, for the purpose of dealing
with the property upon its destruction or obsolescence as is hereafter
provided. As attorney-in-fact, the Association, by its President
and Secretary, shall have full and complete authorization, right and
power to make, execute and deliver any contract, deed or any other
instrument with respect to the interest of a condominium unit owner
which are necessary and -.appropriate to exercise thepowers herein
granted. Repair and reconstruction of the improvement(s) as used in
the succeeding subparagraphs means restoring the improvement(s)-to
substantially the same conditions in which it existed prior to the
damage, with each unit and the general and limited common elements
having the same vertical and horizontal boundaries as before. The
proceeds of any insurance collected shall be made available to the
Association for the purpose of repair, restoration or replacements
.unless the owners and all first mortgagees agree not to rebuild in
accordance with the provisions set forth hereinafter.
(a) In the event of damage or destruction due to fire or other
disaster., the insurance proceeds, if sufficient to reconstruct the
improvements) shall be applied by.the Association, as attorney-in-
fact, to.such reconstruction, and the improvement(s) shall be promtly
repair ed and reconstructed.
(b) If the insurance proceeds are insufficient to repair
and reconstruct the improvement(s), and if such damage is not more than
fifty (50%) percent of all of the general common elements, not includ-
ing land, such damage or destruction shall be promptly repaired and
reconstructed by the Association, as attorney-in-fact, using the pro-
ceeds of insurance and the proceeds of an assessment to be made against
all of the owners and their condominium units. Such deficiency assess-
ment shall be a common expense made pro rata according to each owner's
percentage interest in and to the general common elements and shall
be due and payable within thirty days after written notice thereof.
The Association shall have the authority to cause the repair or restor-
ation of the improvements using all of the insurance proceeds for such
purpose notwithstanding the failure of an owner to pay the assessment.
The assessment provided for herein shall be a debt of each owner, and
a lien on his condominium unit and maybe enforced and collected as is
provided in paragraph 24. In addition thereto, the Association,
as attorney-in-fact, shall have the absolute right and power to sell
the condominium unit of any owner refusing or failing to pay such
deficiency assessment within the time provided, and if not so paid
the Associaiton shall cause to be recorded a notice that the.condominium
unit of the delinquent owner shall be sold by the Association. The
proceeds derived from the sale of such condominium unit shall be used
and disbursed by the Association, as attorney-in-fact, in the following.,
order:
(1) For payment of the balance of the lien of any first mortgage.
(2) For payment of taxes and special assessment liens in favor
of any assessing entity;
(3). For payment of unpaid common expenses;
(4)- For payment of junior liens and encumbrances in the order of
and to the extent of their priority;. and
(5) The..b alance remaining,if any, shall be paid to the
condominium.unit owner.
-13-
121)
(c) If more than fifty (50%) percent of all of the general
common elements, not including land, are destroyed or damaged, and
if the owners representing an aggregate ownership interest of one-
half of said condominium units, or more, do not voluntarily, within
one hundred days thereafter, make provision for reconstruction, which
plan must have the unanimous approval or consent of every first mortgagee,
the Association shall forthwith record a notice setting forth such
fact or facts, and upon the recording of such notice by the Associa-
tion's president and secretary, the entire remaining premises shall
be sold by the Association, as attorney-in-fact for all of the owners,
free and clear of the provisions contained in this Declaration:, the
Map and the By -Laws. The insurance settlement proceeds shall be
collected by the Association, and such proceeds shall be divided by
the Association according to each unit owner's interest (as such
interests appear on the policy or policies) and such divided proceeds
shall be paid into as many separate account- as there are units covered
by this declaration, each such accounts representing one of the condo-
minium units. Each such account shall be in the name of the Asso-
ciation, and shall be further identified by the number of the apart-
ment unit and the name of the owner. From each separate account, the
Association, as attorney-in-fact shall use and disburse the total
amount (of each) of such accounts, without contribution from any
account to another, toward the full payment of the lien of any first
mortgage against the condominium unit represented by such separate
account. There shall be added to each such account, the apportioned
amount of the proceeds derived from the sale of the entire property.
Such apportionment shall be based upon each condominium unit owner's
percentage interest in the general common elements. The total Funds
of each account shall be ,used and disbursed, without contribution
from one account to another, by.the Association, as attorney-in-
fact, for the same purposes and in the same order as is provided in
sub -paragraph (b)(1) through,(5)of this paragraph.
If the owners representing an aggregate ownership interest of
three-fourths (3/4ths) of the condominium units, or more, adopt a
plan for reconstruction, which plan has the unanimous approval of
all first mortgagees, then all of the owners shall be bound by
the terms and other provisions of such plan. Any assessment made in
connection with such plan shall be a common expense and made pro rata
according to each owner's percentage interest in the general common
elements and shall be due and payable as provided by the terms of
such plan but not sooner than thirty days after written notice thereof.
The Association shall have the authority to eause the repair or
restoration of the improvements using all of the insurance proceeds
for such purpose notwithstanding the failure of an owner to pay the
assessment. The assessment provided for herein shall be a debt of
each owner and a lien on his condominium unit and may be enforced
and collected as is provided in paragraph 24.
In addition thereto, the Association, as attorney-in-fact, shall
have the absolute right and power to sell the condominium unit of any
owner refusing or failing to pay such assessment within the time pro-
vided, and if not so paid, the Association shall cause to be recorded
a notice that the condominium unit of the delinquent owner shall be
sold by the Association. The proceeds derived from sale of such
condominium unit shall be used and disbursed by the Association,
as attorney-in-fact, for the same purposes and in the same order
as is provided'in sub-paragraph(b)(1) through (5) of this paragraph.
(d) The owners representing an aggregate ownership interest of
three-fourths (3/4ths) of the condominium units covered by this
declaration,or more, may agree that the general common elements of
-14-
12
the property are obsolete and that the same should be renewed or re-
Constructed. In such instance, then the expense thereof .shall be
payable by all of the owners as common expenses; provided, however,
`that any owner not agreeing to such renewal or reconstruction may
give written notice to the Association that such unit shall be pur-
chased by the Association for the fair market value thereof. If
such owner and the Association can agree on the'fair market value
.thereof, then such sale shall be consummatedwithin thirty days there-
after. If the parties are unable to agree, the date when either
party notified the other that he or it is unable to agree with the
other shall be the "Commencing date" from which all periods of time
mentioned herein shall be measured. Within ten days following the
commencement date, each party shall nominate in writing (and give
notice of such nomination to the other party), the appraiser who
shall be a member of the Beaumont Real Estate Board.If either
"party-fails to make such a nomination, the appraiser nominated shall
within five days after default by the other party appoint and assn-
ciate with him another appraiser (to be selected from the Beaumont
Real Estate Board). If the two appraisers designated by the parties-
or selected pursuant hereto in the event of the default of one party,
are unable to agree, they shall appoint another appraiser (to be
selected from the Beaumont Real Estate Board) to be umpire between
them, if they can agree. on such person. If they are unable to agree
Upon such umpire, then each appraiser previously appointed shall
nominate two persons (each of whom shall be a member of the Beaumont.
Real'Estate Board), and from the names of the four persons so nominated
shall.. be drawn by lot by any judge of any court of record in Texas,
and the name so drawn shall be the umpire- The nominations from
whom the umpire id to be drawn by lot shall be submitted within ten
days.of the failure of the two appraisers to agree, which in any
event shall not.be later than twenty days following the appointment
of se pp
second appraiser. The decision
of the
appraisers pp s as to the fair
market value or in the case of their disagreement, the decision of
'the umpire, shall be final and binding. The expenses and fees of
such appraisers shall beborne equally by the Association and the
owners.. The sale shall be consummated within fifteen days thereafter,
and the Association, as attorney-in-fact, shall disburse such proceeds
as is provided in sub-paragraph (b)(1) through (5) of this paragraph.
.(e) The.owners representing an aggregate ownership interest of
.three-fourths (3/4ths) of the condominium units, covered by this
declaration, or more, may agree that the general common elements of
the property are obsolete and that the same should be sold. In such
"instancethe Association shall forthwith record a notice setting
forth such fact or facts, and upon the recording of such notice
by.the Association's president and secretary, the entire premises
Shall be sold by the Association, as attorney-in-fact for. all of the
owners, free and clear of the provisions contained in this Declara
tion, the Map and -the By-Laws. The sales proceeds shall be apportioned
between the owners' on the basis'of each.owner's percentage interest
in,the general common elements, and such apportioned proceeds shall
be paid into as many separate accounts as there. are units covered by
this .declaration, each such account representing one condominium unit.
Each such account shall be in the name of the Association, and shall
'be further identified by the number of the Apartment and the name of
the owner. From each separate account, the Association as attorney-
in-fact, shall use and disburse the total amount (of each) of such
funds, without contribution from one fund to another, for the same
purposes and in the same order as is provided in subparagraph (b)(1)
through (5) of this paragraph.
31. Prior to the first conveyance of any condominium unit,
'Declarant shall.execute and deliver a bill of.saie to the Association,
transferring all items of personal property located.on the.entire
premises, and furnished by Declarant,.which property.is intended for
the common use and enjoyment of the condominium unit.owners and occu-
..pants.. The Association shall hold title to such property for the
use_..and.enjoyment.of the condominium uni.t_owners and occupants._ No
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owner shall have any other interest and right thereto, and all such
right and interest shall absolutely terminate upon the owner's
termination of possession of his condominium unit.
32. All notices, demands, or other notices intended to be
served upon an owner shall be sent by ordinary or.certified mail,
postage prepaid, addressed in the name of such owner in care of the
apartment number and building address of such owner. All notices,
demands, or other notices intended to be served upon the Managing
Agent, or the Board of Managers of the Association, or the Association
shall be sent by ordinary or certified mail, postage prepaid, 3679
Calder, Beaumont, Texas, until such address is changed by a notice
of.address change duly recorded.
33. If any of the provisions of this Declaration or any paragraph,
sentence, clause, phrase, or word, or the application thereof in any
circumstances be invalidated, such invalidity shall not affect the
validity of the remainder of this Declaration and the application of
any such provisions, paragraph, sentence, clause, phrase or word in
any other circumstances shall not be affected thereby.
34. The provisions of this Declaration shall be in addition and
supplemental to the Condominium Ownership Act of the State of Texas
and to all other provisions of law.
35. That whenever used herein, unless the context shall otherwise
provide, the singular number shall include the plural, the plural
the singular, and the use -of any gender shall include all genders.
EXECUTED this 90th,day of September , 1977.
NICHOLS COMPANY, A PARTNERSHIP.
By: ��-- 5%i
H. G. Nichols,Sr.-1 a Partner
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
BEFORE ME, the undersigned authority, on this day personally
appeared H. G. Nichols, Sr., known to me to be the person and partner
whose name is subscribed to the foregoing instrument, and acknowledged
to me that he executed the same as the act of NICHOLS COMPANY, a
partnership of which he is a partner, for the purposes and considera-
tion expressed and in the capacity therein stated, and that he was
authorized to do so.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 3A -qday of
October , 197 7.
NOTARY PUBLIC IN AND FOR
JEFFERSON COUNTY, TEXAS
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1. The purpose for which this non-profit Association is formed
is to govern the condominium property situated in the County of Jef-
ferson, State of Texas, which property is described and depicted in
Exhibit "A", which by this reference is made a part hereof, and which
,property has been submitted to the provisions.of the Condominium
Ownership Act of the State of Texas.
2. All present or future owners, tenants, future tenants, or
any other person that might use the facilities of the project in any
manner are subject to the regulations set forth in these By -Laws.
The more acquisition or rental of any of the condominium units
(hereinafter referred to as "Units") of the project or the mere act
of occupancy. of any of said units.will signify that these By -Laws are
: accepted,'.rat.ified, and will be complied with.
ARTICLE II.
MEMBERSHIP, VOTING, MAJORITY OF OWNERS,
QUORUM, PROXIES
.1. Membership. Any person on becoming an owner of a condominium
—unit shall automatically become a member of this Association and be
subject to these By -Laws. Such membership shall terminate without
any formal Association action whenever such person ceases to own a
condominium unit, but such termination shall not relieve or release any
such former owner from any liability or obligation incurred under, or
in any way •connected with the condominium regime established by the
foregoing declaration, during the period of such ownership and
membership in this Association, or impair the rights or remedies which
the Board of Managers or the Association or others may have against
such former owner and member arising out of or in any way connected
with such ownership and membership, and the covenants and obligations
incident thereto. No Certificates of stock shall be issued by the
Association, but the Board of Managers may,if it so elects, issue
one membership card to the owner(s) of a condominium_ unit. Such
. .. membership card shall be surrendered to the Secretary whenever owner-
ship of the condominium unit designated thereon shall terminate.
2. Voting. Voting shall be based upon the percentage of the
undivided interest of each unit owner in the general common elements.
�'An owner of an undivided fractional interest in and to a condominium
unit shall be entitled to a vote equal to his fractional ownership
interest in such unit. Cumulative voting is prohibited..
3. Majority of Unit Owners. As used in these. By -Laws, the
term "majority of unit owners shall mean the apartment owners with
51% or more of the votes weighted so as to coincide with.the percentages
assigned in the Declaration.
u. Quorum. Except as otherwise provided in these ByLaws,
the.presence-in person or by proxy of a "majority of -unit owners" as
—defined in,paragraph 3 of this Article shall constitute a quorum.,
5.. Proxies. Votes maybe.cast in person or by proxy.
Proxies may be filed with the Secretary before the appointed time. of
each meeting.'
ARTICLE III.
ADMINISTRATION
1. Association Responsibi'li'ties. The owners of the Units
will constitute the.Association of Unit Owners, hereinafter referred
to as "Association," who will have the responsibility of administering
the project through a Board of Managers.
2. Place of Meetings. Meetings of the Association shall be
held at such place as the Board of Managers determine.
3. Annual Meetings. The first annual meeting of the Associa-
tion shall be held on or before one year after the date hereof:
Thereafter, the annual meetings of the Association shall be held on
the fourth Monday of whatever month the first annual meeting is held
in, as that month comes around each succeeding year. At such meetings
there shall be elected by ballot of the owners of a Board of Managers
in accordance with the requirements of Paragraph 5 of Article IV
of these By -Laws. The owners may also transact other business of the
Association as may properly come before them.
4. Special Meetings. It shall be the duty of the President
to call a special meeting of the owners as directed by resolution of
the Board of Managers, or upon a petition signed bya majority of
the owners and having been presented to the Secretary. The notice
of any special meeting shall state the time and place of such
meeting and the purpose thereof. No business shall be transacted at
a special meeting except as stated in the notice unless by consent
of four-fifths of the owners present, either in person or by proxy.
5. Notice of Meetings. It shall be the duty of the Secretary
to mail a notice of each annual or special meeting, stating the purpose
thereof,,as well as the time and place where it is to be held, to
each owner of record, at least 5 but not .•more than 10 days prior to
such meeting. The mailing of a notice in the manner provided in this
paragraph shall be considered notice served.
.6. Adjourned Meeting. If any meeting of owners cannot be
organized because a quorum has not attended, the owners who are
present, either in person or by proxy, may adjourn the meeting to a
time not less than forty-eight hours from the time the original
meeting was called.
7. Order of Business. The order of business at all meetings
of the owners of units shall be as follows:
(a) Roll Call
(b) Proof of notice of meeting or waiver of notice
(c) Reading of minutes of preceding meeting.
(d) Reports of officers
(e) Reports of Committees
(f)' Election of Managers
(g) Unfinished business
(h) New business
ARTICLE IV
BOARD OF MANAGERS
1. Number and Qualification. The affairs of. this Association
shall be governed by a Board of Managers composed of three persons.
The following persons shall act in such capacity and shall manage the
affairs of the Association until one year after the date hereof,
unless all of the units of this regime are leased or sold prior to the
end of such year at which earlier time they will have the option to
cease being members of the Board of Managers or unless their successors
are elected prior to the end of such.year., to -wit: H. G. Nichols,
H. G.".. Nichols.,, Jr., and Reed Nichols.
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2. Powers and Duties. The Board of Managers shall have the
powers and duties necessary for the administration of the affairs
of the Association and for the operation and maintenance of a first
class residential condominium project. The Board of Managers may
do all such acts and things as are not by these By -Laws or by the
.foregoing Condominium Declaration directed to be exercised and done
by the owners.
3. Other Powers and Duties. The Board of Managers shall be
empowered and shall have the duties as follows:
(a) To administer and enforce the covenants, conditions,
restrictions, uses, limitations, obligations, and all other pro-
visions set forth in the Condominium. Declaration submitting the
property to the provisions of the Condominium Ownership Act of the
State .of Texas.
(b) To establish, make and enforce compliance with such
reasonable house rules as may be necessary for the operation, use
and occupancy of this condominium project with the right to ariend
.same from time to time. A copy of such rules and regulations shall
be delivered or mailed to each member promptly upon the adoption
thereof.
(c) To keep in good order, condition and repair all of the
general and limited common elements and all items of personal property
used in the enjoyment of the entire premises.
(d) To insure and keep insured all of the insurable general
common elements of the property in an amount equal to their maximum
replacement value as provided in the Declaration. Maximum replacement
value shall be determined annually by one or more written appraisals.
The'type and kind of such insurance contracts shall be determined
by what a majority of the unit owners direct. Further, to obtain
and maintain an owners, landlord and tenant comprehensive liability
insurance policy covering the entire premises in amounts not less
than $100,000.00 per person and $300,000.00 per accident and $50,000.00
.property damages and also such other types and kinds of insurance
covering such other risks as a majority of the unit owners shall
direct. To insure and keep insured all of the fixtures, equipment
and personal property acquired by the Association for the benefit
of the Association and the owners of the condominium units and
their first mortgagees.
(e) To fix, determine, levy and collect the monthly prorated
assessments. To levy and collect special assessments whenever in
the opinion of the Board it is necessary to so do in ..order to meet
-increased operating ormaintenance expenses or costs, or additional
capital expense, or because of emergencies. All monthly or other
assessments shall be in itemized statement form and shall set forth
the detail of the various expenses for which the assessments are
being made.
(f) To collect delinquent assessments by suit or otherwise
and to enjoin or seek damages from an owner as is provided in the
Declaration and these By -Laws.
(g) 'To protect and defend the entire premises from loss and
damage by.suit or otherwise.
(h) To borrow funds in order to pay for any expenditure
or outlay required, to execute all such instruments evidencing such
indebtedness which shall be the serveral obligation of all of the
owners in the same proportion as their interest in the general common
elements.
(i) To enter into contracts within the scope of their.,duties
and powers.
(j) To establish a bank account for the common treasury
and for all separate funds which are required, or may be deemed
advisable by the Board of Managers.
(k) To keep and maintain full and accurate books and
records showing all of the receipts, expenses or disbursements and to
permit examination thereof at any reasonable time by each of the owners,,
and to cause a'complete audit of the books and. accounts by a competent
certified public accountant once each year.
(1) To prepare and deliver annually to each owner a statement
showing all receipts, expenses or disbursements since the last such
statement. ;
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(m) To meet at least once each quarter.
(n) To designate the personnel necessary for the maintenance
and operation of the general and limited common elements.
(o) In general, to carry on the administration of this
Association and to do all of those things necessary and reasonable
in order to carry out the communal aspect of condominium ownership.
4. Managing Agent. The Managing Agent shall be Declarant
in the foregoing Declaration or whatever person or entity to whom
such Declarant for purposes of resale may convey all its apartment
units in this regime which at the time of such conveyance it has not
sold to owner occupants and such Managing Agent shall have all of the
powers and shall perform the duties of the Board of Managers until
one year after the date hereof, unless all units in this regime are
leased or sold prior to the end of such year at which earlier time
Declarant -shall have.the option to cease being such Managing Agent.
'Declarant will receive no compensation for serving as Managing
Agent. Subsequent to one year after the date hereof, or sub.8equent
to the lease or sale of all units in this regime, whichever comes
first in time, the Board of Managers may employ for the Association
a Managing Agent,at a compensation to be established by the Board
to perform such duties and services as the Board shall authorize,,
including, but not limited to, the duties listed in paragraph 3 of
this Article, but such subsequently employed Managing Agent may not
be Declarant unless Declarant is to serve without compensation.
5. Election and Term of Office. At the first annual
medting of the Association the term of office of one.Manager shall
be fixed for three years. The term of office of one Manager shall
be fixed at two years, and the term of office of one Manager shall'
be fixed at one year. At the expiration of the initial term of
office of each respective Manager, his successor shall be elected
to serve a term of three years. The three persons acting as Managers
shall hold office until their successors have been elected and hold
their first meeting.
6. Vacancies. Vacancies on the Board of Managers caused
'by any reason other than the removal of a Manager by a vote of the
Association shall be filled by vote of the majority of the remaining
Managers, even though they may constitute less than a quorum, and
each -person so elected shall be a Manager until a successor is
elected at the next annual meeting of the Association.
7. Removal of Managers. At any regular or special meeting
duly called, any one or more of the Managers may be removed with or
without cause by a majority of the owners, and a successor may .then
and there be elected to fill the vacancy thus created. Any Manager
whose.removal has been proposed by the owners shall be given an
.opportunity to be heard'at the meeting.
8. Organization Meeting. The first meeting of a newly elected
Board of Managers shall be held within ten days of election at such
place as shall be fixed by the Managers at the meeting at which such
Managers were elected, and no notice shall be necessary to the newly
elected Managers in order legally to constitute such meeting, providing
a majority of the whole Board shall be present.
9. Regular Meetings. Regular meetings of the Board of Managers
may be held at such time and place as shall be determined from time
to time, by a majority of the Managers;,,.,but at least four such meetings
shall be held during each fiscal year. Notice of regular meetings
of the Board of Managers shall be given to each Manager, personally
or by mail, -telephone or telegraph, at least three days. prior to
the day named for such meeting:
10.. Special Meeting. Special meetings of the Board of
Managers may be called by the President on three days' notice to each .
Manager, given personally, or by mail, telephone or telegraph, which
notice shall -state the time, place (as hereinabove provided) and
purpose of the meeting. Special meetings of the Board of Managers
shall be called by.the.President or Secretary in like manner and on
like notice on the, writtenrequest of at least two Managers.
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'11. WaiVer'of Notice. Before. or at any meeting of the Board
of Managers, any Manager may, in.writing, waive notice of such meeting
and such waiver shall be deemed equivalent to the giving,..,of such notice.
Attendance by a Manager at any meeting of the Board shall be a waiver
:of notice by him of the time and place thereof. If all Managers are
present at any meeting of the Board, no notice shall be required
and any business may be transacted at such meeting.
12. Board of Managers' Quorum. At all meetings of the Board
of Managers, a majority of the Managers shall constitute a quorum for
the transaction of business, and the acts of the majority of.the
Managers present at a meeting at which a quorum is present shall be
the acts of the Board of Managers. If, at any meeting of the Board
of Managers, there be less than a,quorum present, the majority of those
present may adjourn the meeting from time to time. At any such adjourned
meeting, any business which might have been transacted at the meeting
as originally called may be transacted without further notice.
13. Fidelity Bonds. The Board of Managers may require that all
officers and employees of the Association handling or.responsible for
Association funds shall furnish adequate fidelity bonds. The premiums
on such bonds shall be paid by the Association.
ARTICLE V.
OFFICERS
1. Designation. The officers of the Association shall be a
President, a Secretary, and a Treasurer, all of whom shall.be elected
by and from the Board of Managers.
2. Election of Officers. The officers of the Association
shall be elected annually by the Board of.Managers at the organization
meeting of each new Board and shall hold office at the pleasure of the
Board.
3. Removal of Officers. Upon an affirmative vote of a majority
of the members of the Board of Managers, any officer may be removed.,
either with or without cause, and his successor elected at any regular
meeting of the Board of Managers, or at any special meeting of the
Board called-for.such purpose.
4. President. The President shall be the chief executive
officer: of the Association. He shall preside at all meetings of
the Association and of the Board of Managers. He shall have all of
the general powers and duties which are usually vestedjn the office
Of .President of an association, including, but not limited to,the
power to appoint committeesfrom among the owners from time to time
as he may in his discretion decide is appropriate to assist in the
conduct of the affairs of the Association.
5. Secretary. The Secretary shall keep all the minutes
of alh.meetings of the Board of Managers and theminutes of all
meetings of the Association; he shall have charge. of such books and
papers.as the Board of Managers may direct; and he shall, in general,
perform all the duties incident to the office of Secretary.
The Secretary shall compile and keep up to date at the principal
..,.office of the Association a complete list of members and their last
known addresses as shown on the records, of the Asso.ciation. Such
list shall also show opposite each member's name the number or other
' appropriate designation of the apartment unit owned by such members
and the garage or parking space and storage space assigned for use
in connection with such apartment unit. Such list shall be open to
inspection by members and other persons lawfully entitled to inspect
the same.at reasonable time during regular business hours..
6. Treasurer. The Treasurer shall have responsibility for
Association funds and shall be responsible for keeping full and accu-
rate accounts -of all receipts and disbursements in books belonging to
the Association. 'He shall -be responsible for the deposit of all monies
and other valuable effects -in the name, and to the,credit,:of the
Association in such depositaries as may from time -to time be designated
`by,..the. Board of Managers...
•
ARTICLE VI.
INDEMNIFICATION OF OFFICERS AND MANAGERS
The Association shall indemnify every Manager or officer,
his heirs, executors and administrators, against all loss, costs
and expense, including counsel fees, -reasonably incurred by him in
connection with any action, suit or proceeding to which he may
be made a party by reason of his being or having been a Manager
or officer of the Association, except as to matters as to which
he shall be finally adjudged in such action; suit or proceeding
to be liable for gross negligence or willful misconduct. In the
event of a settlement, indemnification shall be provided only in
connection with such matters covered by the settlement as to which
the Association is advised by counsel that the person to be indemnified
has not been guilty of gross negligence or willful misconduct in the
performance of his duty as such Manager or officer in relation to
the matter involved. The foregoing rights shall not be exclusive of
other rights to which such Manager or officer may be entitled. All
liability, loss, damage, costs and expense incurred or suffered by
the Association by reason or arising out of or in connection with
the foregoing indemnift.cation provisions shall be treated and handled
by the Association as Common expenses; provided, however; that
nothing in this Article VI contained shall be deemed to obligate
the Association to indemnify any member or owner of a condominium
unit, who is or has been a Manager or officer of the.Association,
with respect to any duties or obligations assumed or liabilities
incurred by him under and:byvirtue of the foregoing Declaration as
a member or owner of a condominium unit covered thereby..
ARTICLE VII.
OBLIGATIONS OF THE OWNERS
1. Assessments. All owners, upon completion of the purchase
thereof, or occupancy by such owner or tenant, whichever occurs
first, shall be obligated to pay the monthly assessments imposed by
the Association to meet the common expenses. The assessments shall be
made prorata according to percentage interest in and to the general
common.elements and shall be due monthly in advance. A member shall
be deemed to be in good standing and entitled to vote at any annual or
a special meeting of members, within the meaning of these By -Laws,
if and only if he shall have fully paid all assessments made or levied
against him and the condominium unit owned by him.
2. Maintenance and Repair.
TaT Every owner must perform promptly at his own expense
all maintenance and repair work within his own apartment unit, which
if omitted would affect the project in its entirety, or in a part belong-
ing to other owners.
(b) All the repairs of internal installations of each unit
such as water, light, gas power, sewage, telephone, air conditioners,
sanitary installations, electrical fixtures and all other accessories,
equipment and fixtures belonging to the unit area shall be at the
expense of each unit's owner. External installations of each unit
such as electric lines, wires, conduits or systems and heating and
air conditioning systems shall be maintained by the.owner of the unit
exclusively served by same. An owner shall also maintain all the
plumbing serving exclusively his apartment unit, and maintenance of
sewer lines serving.more than one apartment unit and running from
the end of.an apartment unit's single sewer line to the point where
suchsewer liriebecomes the property of the City of Beaumont, shall
be "common.. expenses".-
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A. 1
(c) Damage to exterior doors and windows shall be repaired
by and at the expense of the owner, provided, however, if such damage.
or loss is covered by insurance, such owner shall be entitled to re-
imbursement to the extent of the insurance payment. Replacement or
repair of exterior doors or windows required because of ordinary wear
and tear and deterioration shall be paid for out of the assessments
levied and collected by the Board of Managers.
(d) An owner shall be obligated to reimburse the Association
promptly upon receipt of its statement for any expenditures incurred
by it in repairing or replaing any general or limited common element
damaged by his negligence or by the negligence of his tenants or agents..
3. Mechanic's Lien. Each owner agrees to indemnify and to
hold each of the other owners harmless from any and all claims of
Mechanic's Lien filed agaist other apartment units and the appurtenant
general common elements for labor, materials, services or other products
incorporated in the owner's apartment unit. In the event suit for
foreclosure is commenced, then within ninety days thereafter such owner
shall be required to deposit with the Association cash or negotiable
securities equal to the amount of such claim, plus interest for one
year, together with the sum of One Hundred Dollars. Such sum or
securities shall be held by the Association pending final adjudication
or settlement of the litigation. Disbursements of such funds or pro-
ceeds shall be made to insure payment of or on-account of such final
judgment or settlement. Any dificiency shall be paid forthwith by the
subject owner, and his failure to so pay shall entitle the Association
to make such payment, and the amount thereof shall be a debt of the
owner and a lien against his condominium unit, which may be foreclosed
as is provided in paragraph 24 of the Declaration.
4. General.
a Each owner shall comply strictly with the provisions
of the foregoing Condominium Declaration.
(b) Each owner shall always endeavor to observe and promote
the cooperative purposes for the accomplishment of which the project
covered by the-foregoing Declaration was built.
5. USe.of Units — Internal Changes
L a All units shall be utilized for single family residential
purposes only and no unit shall be occupied other than on a temporary
basis by more than two persons per bedroom and the occupancy by"more than
f. such number continuing for a period of ten days shall be deemed for
{ this purpose to constitute permanent occupancy.
(b) An owner shall not make structural modifications or
alterations to his unit or installations located therein; without
previously notifying the Association in writing through the Managing
Agent, or if no Managing Agent is employed, then through the President
of the Board of Managers. The Association shall have the obligation
to. answer within five days after such notice, and failure to do so
.,within the stipulated time shall mean there in no objection to the
proposed modification or alteration.
(c) :An owner, however, with the approval of design thereof
by the Board of Managers may install awnings- or covers over the Patio
i:. area assigned to,-his unit, with the cost of. installation and the
(- maintenance thereof to be borne by such owner.
6.' Use of General Common Elements and Limited Common Elements.
Each owner may use the general common elements and the limited common.,'
elements in accordance with the purpose for which they were intended
without hindering or encroaching upon the lawful rights of the"bther
owners.
7. ' Ri ht of Entry.
a An. ,owner shall grant the right of entry to the Managing
`. Agent, or to any other person authorized by the Board-of Managers, in
:;.. case of any emergency originating in or threatening his unit, whether
the owner is present at the time or not.
(b) An owner shall permit other owners, or their representa
tives, when so required, to enter his unit for the purpose of perform-
ing.installations, alterations or repairs to the mechanical or electri-
cal services,.provided that requests for entry are made in advance and
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fir(/ �")--/a5"
y
that.such entry is at a time convenient to the owner. In case of
an emergency, such right of entry shall be immediate.
8. Rules and Regulations.
a All owners shall promptly and completely comply with
each of the rules and regulations herein contained or hereafter
properly adopted for the utilization of any recreational facilities
that may be afforded. All owners and their guests shall achieve
maximum utilization of such facilities consonant with the rights of
each of the other owners thereto.
(b) Nothing shall be done in any residential unit, nor
shall same be occupied or used for any purpose, nor shall any commod-.
ifty, Product or personal property be kept therein or thereon, which
shall cause such improvements to be uninsurable against loss by fire,
or the perils included in an.extended coverage endorsement under the
rules of the State of Texas Insurance Commission, or which might cause
or warrant any policy or policies covering said premises to be cancelled
or suspended by the issuing Company.
(c) Owners and occupants of units shall at all times
exercise extreme care to avoid making or permitting to be made loud
or objectionable noises, and in using or playing or permitting to be
used or played musical instruments, radios, phonographs, television
sets, amplifiers, and any other instruments or devices in such manner
as. may disturb or tend to disturb owners, tenants, or other occupants
of condominium units in the condominium regime established by the
foregoing Declaration. No unit shall be used or occupied in such man-
ner as to.obstruct or interfere with the enjoyment of occupants or
other residents of adjoining units, nor shall any nuisance,.or immoral
or illegal activity be committed or permitted to occur in or on any
unit or upon any part of the common elements of the condominium regime..
established by the foregoing Declaration.
(d) The common area is intended for use for the purpose of
affording vehicular and pedestrian movement within the condominium,
and -of providing access to the units; those portions thereof adapted
therefor, for recreational use by the owners and occupants of units;
and all thereof for the beautification of the condominium and for
providing privacy for the residents. thereof through landscaping and
such other means as shall be deemed•appropriate. No part of the com-..
mon area shall be obstructed so as to interfere with its use for the
purposes hereinabove recited, nor shall any part of the common area
(common elements) be used for general storage purposes after the com
pletion .of the construction of the units by developer, nor anything
done theron in any manner which shall increase the rate for hazard
and liability insurance covering said area and improvements situated
thereon. Not more than two small" dogs, cats, or other usual small
household pets may be kept in any unit, provided always that such
household pets shall be allowed on the common areas only as may be
` specified under reasonable rules therefor promulgated by.the Board
of Managers. Except as hereinabove stated, no animal, livestock,
birds or poultry shall be brought within .the condominium or kept in
or around any unit thereof.
(e) No resident of the condominium shall post any advertise
ments, signs, or posters, of any kind in or on the project except as
authorized by the Association.
(f) Garages may not be converted into living areas such as
den or play rooms and they shall be used only for normal garage purposes..
Garages and storage areas shall at all times be kept free of an.
unreasonable accumulation of debris or rubbish of any kind. Garage
doors.,shall.be opened only when passing through the garage entrances
and they shall be closed when such passing through has been completed.
..Nothing will be put in the garage which will impede the closing of
garage doors.
(g) Parking of automobiles or other vehicles shall be only
in.the -spaces designated as parking space for each unit.. Owners shall'.
riot park a_ vehicle in front of an apartment other than their own for
• - ,� - l o � �-X9')'7
an unreasonable length of time. No unattended automobiles or other
.vehicles shall at any time be left in the alleyways or driveways or
streets in such manner ,as to impede the passage of traffic. or to impair
proper access to parking areas. No boats, trailers, camping trailers,
mobile homes, motor homes, or similar vehicles shall be parked, placed
or stored in.or on the yards or streets or drivewaysin front'of or on -
the sides of the units on a "Permanent Basis", which shall be taken
'. to mean for any period or periods in excess of forty-eight (48) con-
secutive hours.
(h) No owner, resident, or lessee shall install wiring for
electrical or telephone installation, television antennae, machines
ori
a r conditioning units or any other devices whatsoever on the
exterior of the project or that protrude through the walls or out
of the windows, or on the roof of the project save as are expressly
in writing previously approved by the Association.
(i) No owner or other occupant of any condominium unit shall
make any alteration or improvement to the common elements of the
condominium or remove any planting, structure, furnishings'or other
equipment or object therefrom except with the written consent of the
Association.
9. Destruction or Obsolescence. Each owner shall, upon
becoming an owner of a condominium unit, execute a.power of attorney in
favor of.the.Association, irrevocably appointing the Assocition his
attorney-in-fact to deal with the owner's condominium unit upon its
destruction or obsolescence as is provided in paragraph 30 of the
foregoing Condominium Declaration.
ARTICLE VIII
AMENDMENTS TO PLAN OF APARTMENT OWNERSHIP
L, By -Laws'. These By -Laws may be amended by the Association
at a dt.zly constituted meeting for such purpose, and no amendment shall -
...take effect unless approved by owners representing at least 70% of
.the.aggregage interest of the undivided ownership of the general
common elements
ARTICLE IX
MORTGAGES
1. Notice of Association. An owner who mortgages his unit
shall notify the Association through the Managing Agent, if any, or the
President of the Board of Managers, giving the name and address of
his mortgagee. The Association shall maintain such information in
a book entitled "Mortgagees of Units".
2. Notice of Default. The Association shall give to the holder
of each first mortgage of a unit written notification of any default
by the mortgagor of such unit in the performance of such mortgagor's
obligations under these By -Laws and said condominium Declaration which
is not cured within 60 days and the holder of each such mortgage shall
be entitled to receive such written notification. The Association
shall allow all first mortgagees of a unit to examine its books and
records or the condominium project. The Association shall give Federal
Home.Loan Mortgage Corporation notice (care of the Servicer at the
Servicer's address) in writing.of any loss to, or taking of, the com-
mon elements of the Condominium project if such loss or taking exceeds
$10,000.00, and of any damage to a condominium unit covered by a
mortgage purchased in whole or in part by Federal Home Loan Mortgage
Corporation which exceeds $1,000.00.
ARTICLE X
COMPLIANCE
These By -Laws are set forth to comply with the requirements of
the State of Texas Condominium Ownership Act. If any of these By -
Laws conflict with the provisions of said statute, it is hereby
agreed and. accepted that the provisions of the Statute will apply.
ARTICLE XT
This Association is not organized for profit. No member,
member'of the' Board of Managers or person from whom the'Association
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may receive any property or funds shall receive or shall be lawfully
entitled to receive any pecuniary profit from the operation thereof,
and in no event shall any part of the funds or assets of the Association -
be paid as salary or compensation to, or distributed to, or inure to
the benefit of any member of the Board of Managers; provided, however,
always (1) that reasonable compenstion may be'p aid to any member other
than Declarant, H. G. Nichols, Sr., H. G. Nichols, Jr., or Reed Nichols
while acting as an agent or employee of the Association for services
rendered in effecting one or more of the purposes of the Association,
and (2) that any member of the Board of Managers may, from time to
time, be reimbursed for his actual and reasonable expenses incurred
in connection with the administration of the affairs of the Association.
ARTICLE XII.
The Registered office and the principal office for the transaction
of business of this Association shall be 3679 Calder Ave., Beaumont,
Texas, and the Resgistered Agent stall be H. G. Nichols at the same
address.
ARTICLE XIII
The persons who shall be authorized to execute any and all
instruments -of conveyance or encumbrances, including promissory notes,
shall be the President and the Secretary of the Association.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands and' seals, at Beaumont, Texas, this _0th day of
Sebtember, 1977
BOARD OF MANAGERS
H. G. Nichols, Sr. H. G. Nichols, r.
Reed Nichols
NICHOLS COMPANY, A PARTNERSHIP
By: �- - / �
H. G. NICHOLS, SR., a Partner
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