HomeMy WebLinkAboutORD 76-119ORDINANCE NO.'
ENTITLED AN ORDINANCE FOR THE ISSUANCE OF A SPE-
CIFIC USE PERMIT FOR CLUSTER HOUSING DEVELOPMENT
FOR A 5.0 ACRE TRACT HEREIN DESCRIBED IN ACCOR-
DANCE WITH A "PRELIMINARY PLAT"; PROVIDING FOR
THE FILING OF A DECLARATION COVERING THE 5.0
ACRE TRACT.
WHEREAS, on August 16, 1976, the Planning & Zoning Commission of The
City of Beaumont recom ended the issuance of a specific use permit for cluster
housing development to Nichols Company, a partnership, and their heirs, repre-
sentatives, successors, and assigns, for that certain 5.0 acre tract of land
hereinafter described; and,
[REAS, the City Council is of the opinion that the issuance of such
specific use permit is in the best interest of The City of Beaumont and its citi-
zenry, subject to the hereinafter described conditions; NOW, THEREFORE,
BE IT ORDAINED BY THE CITY OF BEALP40NT:
Banti nn 1
That a specific use permit for cluster housing development in accordance
with Section 42-2Q.1 and Section 42-20.4, as amended, be granted to Nichols Com-
pany, a partnership, and to their heirs, legal representatives, successors and
assigns for that certain 5.0. acre tract of land, more particularly described as
follows:
BEING a 5.00-0 acre tract out of the H. Williams
Survey, Abstract No. 56, Beaunont, Jefferson County,
Texas.
ALL THAT CERTAIN tract or parcel of land being out
of that certain 22.83 acre tract described in deed
dated April 30, 1973, from Sybil Howth, et al to
Nichols Development Company of Beaumont, Texas, and
recorded in Volume 1781, Page 130, Deed Records of
Jefferson County, Texas, said herein describedtract
being more fully bounded and described as follows:
BEGINNING at the northeast corner of the herein de-
scribed tract and the northeast corner of said 22.83
acre tract, said corner being the northwest corner of
Rogers Park;
THENCE South zero degrees forty-three minutes thirty
seconds East (S 001 43' 30" E) along the east line of
the herein described tract and along the west line
of Rogers Park for a distance of three hundred eighty-
eight and forty-nine hundredths feet (388.491) to a
point for the southeast corner of the herein described
tract;
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THENCE South eighty-nine degrees fifteen minutes
thirty seconds West (S 891 15' 30.1° W) for a dis-
tance of ninety-five and eight hundredths feet
(95.081) to a point for corner;
THENCE South eighty-two degrees three minutes
seventeen seconds West (S 820 0.31 17" W) for a
distance of fifty and forty-six hundredths feet
(50.461) to a point for corner on the arc of a
curve;
THENCE in a westerly direction along the arc of a
curve having a central angle -of thirty-nine degrees
.fifty-six minutes thirteen seconds (391 56' 13"), a
radius of seventy and zero hundredths feet (70.001),
a long chord which bears North seventy degrees forty-
six minutes twenty-three seconds West (N 701 461 23"
W) for an arc distance of forty --eight and seventy-
nine hundredths feet (48.79') to a point of tangency;
THENCE South eighty-nine degrees fifteen minutes
thirty seconds West (S 891 151 30" W) for a distance
of three hundred eighty-four and forty-eight hundredths
feet (384.481) to the southwest corner of the herein
described 5.000 acre tract;
THENCE with the west line North zero degrees forty-
four minutes thirty seconds West (N 001 44' 3011 W)
for a distance of three hundred seventy-three and
sixteen hundredths feet (373.16') to the northwest
corner;
THENCE with the north line North eighty-eight degrees
forty-three minutes thirty-six seconds East (N 881 431
36" E) for a distance of five hundred seventy-four and
seventy hundredths feet (574.701) to the PLACE OF BE-
GINNING;
CONTAINING IN AREA 5.000 acres of land, more or less.
Section 2.
That this specific use permit herein granted is expressly issued for and
in accordance with that certain "Preliminary Plat" for Marshall Place Townhouses,
Phase I, Beaumont, Texas, dated July 1976, which "Preliminary Plat" is attached
hereto as "Exhibit A" and made a part hereof for all purposes. Also attached
hereto as "Exhibit B" is that certain "Condominium Declaration for Marshall Place
Townhouses, Section One", dated September 27, 1976; and as "Exhibit C" is that cer-
tain "Condominium Declaration for Marshall Place Townhouses, Section Two", dated
September 26, 1976, which exhibits, that is, "Exhibit B" and "Exhibit C", are made
a part of this specific use permit as fully and completely as though copied verbatim
herein. '::Exhibit B" and "Exhibit C", while describing Ltwo separate sections out of
the 5.0 acre tract, together describe all of the 5.0 acre tract described in Section
1 of this ordinance.
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(4)
Section 3.
As a condition to the issuance of this permit, permittee shall file in
the appropriate records of the County Clerk of Jefferson County, Texas, a copy
of said "Exhibit B" prior to the issuance of a Certificate of Occupancy by The
City of Beaumont for any residential unit within Section One (as.definbd in "Ex-
hibit B"), of the 5.0 acre tract of land hereinabove described in Section 1 of
this ordinance, and shall file with said County Clerk a copy of said "Exhibit C"
prior to the issuance of a Certificate of Occupancy by The City of Beaumont for
any residential unit within Section Two (as defined in "Exhibit C") of the 5.0
acre tract of land hereinabove described in Section 1 of this ordinance. Further,
this permit is expressly issued subject to compliance with all appropriate revi-
sions of the Code of Ordinances of The City of Beaumont.
PASSED BY THE CITY COUNCIL, of The City of Beaumont this the ,�, day
of L]Ld� > , 1976.
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. DUE TO ITS BULKINESS, "EXHIBIT A" WILL BE ON FILE IN THE OFFICE
OF THE CITY CLERK OF THE I CITY OF BEAUMONT WITH THIS ORDINANCE.
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'76 41
CONDOMINIUM DECLARATION
FOR
MARSHALL PLACE TOWNHOUSES
SECTION ONE
KNOW ALL MEN BY THESE PRESENTS:
THAT WHEREAS,Nichols Company, a partnership, hereinafte-r
called "Declarant" is the owner of real property situated in the
County of Jefferson, State of Texas, being described as follows,
to -wit:
ITEM ONE
BEING a 2.2127 acre parcel of land out of that
certain 22.83 acre tract described in deed dated
April 30, 1973 from Sybil Howth, et al to Nichols
Development Company of Beaumont, Texas and recorded
in Volume 1781, Page 130 of the Deed Records of
Jefferson County, Texas, said herein described
tract being more fully bounded and described as fol-
lows:
BEGINNING at the northeast corner of the herein
described tract and the northwest corner of the
City of Beaumont's Rogers Park;
THENCE South zero degrees forty-three minutes thirty
seconds East (S 001 43' 30"E) along the east line
of the herein described tract and the west line of
Rogers Park for a distance of three hundred eighty-
eight and forty-nine hundredths feet (388.49')
to the southeast corner of the herein described
tract and the northeast corner of Lot 5, Block 1,
Marshall Place Addition to the City of Beaumont;
THENCE with the south line of the herein described
tract and the north line of Lot 5, Block 1, South
eighty-nine degrees fifteen minutes thirty seconds
West (S 89° 15' 30"W) for a distance of ninety-
five and eight hundredths feet (95.081) to a point
for corner;
THENCE continuing with the south line of the herein
described tract and the north line of Lot 5,
Block 1, South eighty-two degrees three minutes
seventeen seconds West (S 820 03' 17" W) for a dis-
tance of fifty and forty-six hundredths feet (50.461)
to the northwest corner of Lot 5, Block 1, said
corner being in the northeasterly line of Marshall
Place Drive and a point on a curve to the left
having a central angle of thirty-nine degrees fifty-
six minutes thirteen seconds, (39° 561'13"), a
radius of seventy feet (70');
THENCE along the said curve to the left whose long
chord bears North seventy degrees forty-six minutes
twenty-three seconds West V 701 46' 23" W) a dis-
tance of forty-seven and eighty-one hundredths feet
(47.$1') for an arc distance of forty-eight and seventy -
EX Wit 3
l
nine hundredths feet (48.791) to a point'of tangency;
THENCE continuing with the south line of the herein
described tract and the north line of Marshall Place
Drive South eighty-nine degrees fifteen minutes
thirty seconds West (S890 15' 30" W) for a distance
of sixty and forty-two hundredths feet (60.421)
to the southwest corner of the herein described
tract;
THENCE North zero degrees forty-four minutes thirty
seconds West (N 000 44' 30" W) along the west line
of the herein described tract for a distance of
three hundred seventy-six and sixteen hundredths
feet (376.161) to the northwest corner of the herein
described tract;
THENCE with the north line North eighty-eight degrees
forty-three minutes thirty-six seconds East (N 881
43' 36" E) for a distance of two hundred fifty and
sixty-two hundredths feet (250.621) to the PLACE OF
BEGINNING; containing in area 2.2127 acres of land,
more or less;.
ITEM TWO:
A perpetual easement on, over and across the
following described tract of land;
The east 14' of the following described tract of
land;
BEING a 2.2230 acre parcel of land out of that certain
22.83 acre tract described in deed dated Apri1,30, 1973
from Sybil Howth, et al to Nichols Development Company
of Beaumont, Texas and recorded in Volume 1781, Page
130 of the Deed Records of Jefferson County, Texas,
said herein described tract being more fully bounded
and described as follows:
BEGINNING at the northeast corner of the herein des-
cribed tract, said corner being located South eighty-
eight degrees forty-three minutes thirty-six seconds
West (S 880 43' 36" W) a distance of two hundred
fifty and sixty -two hundredths feet (250.621) from
the northeast corner of said 22.83 acre tract and
the northwest corner of Rogers Park;
THENCE with the -east line of the herein described
tract South zero degrees forty-four minutes thirty
seconds East (S 000 44' 30"E) for a distance of
three hundred seventy-six and sixteen hundredths
feet (376.1.61) to the southeast corner, said corner
being.in the north line of Marshall Place Drive;
THENCE with the south line of the herein described
tract and the north line of Marshall Place Drive
South eighty-nine degrees fifteen minutes thirty
seconds West (S 891 15' 30" W) for a distance of two
hundred fifty-eight and twenty-five hundredths feet
(258.25') to a point for the southwest corner;
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THENCE with the west line North zero degrees forty-
four minutes thirty seconds West (N 00° 44' 30" W)
for a distance of three hundred seventy-three and
seventy-seven hundredths feet (373.77') to a.point
for the northwest corner in the north line of said
22.83 acre tract;
THENCE with the north line North eighty-eight degrees
forty-three minutes thirty-six seconds East (N88°
43' 36" E) for a distance of two hundred fifty-eight
and twenty-six hundredths feet (258.26') to the
PLACE OF BEGINNING; containing in area 2.2230 acres
of land, more or less.
This Item Two is for the purpose of providing access
to said Item one and shall carry with it the right
to build and maintain a paved private street on, over
and across same. This Item Two is an exclusive
easement, with the exception that the owner of
said 2.2230 acre tract, 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 2.2230 acre tract
Note: Item One is subject to a perpetual easement on,
over and across the gest 14' thereof.
This easement is for the purpose of providing
access to said 2.2230 acre tract and for and to
the owner or owners thereof, whether present or
future, and shall carry with it the right to build
and maintain 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 One, 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) building partly two-story
and other improvements appurtenant thereto on the property des-
cribed in said Exhibit "A", which when completed shall consist
of.twenty (20) 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 elements;
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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'orily 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
accepted.
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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 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;
(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) Twenty (20) fee simple estates consisting of Twenty (20)
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
1, 2,-3., 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 Seven apartments, numbered Units
7, 8, 9, 10, 11, 12, and 13, -the size, dimensions, location
and boundaries of each being detailed on the survey plat
herewith filed marked Exhibit "A".
BUILDING C -Containing Seven apartments numbered Units 14,
15, 16, 17, 18, 19, and 20, 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 common by the
owners, the interest of each therein being hereinafter set forth
and each undivided interest being appurtenant to one of the Twenty
(20) apartment units..
(C) The percentage of ownership in the common Elements allocated
to each apartment is as follows:
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Unit
Building
Percentage of
Number
Designation
Ownership
1
A
5.26
2
A
5.00
3
A
4.74
4.
A
5.00
5
A
4.74
6
A
5.26
7.
B
5.26
8
B
5.00
9
B
4.74
10
B
5.00
11
B
4.74
12
B
5.00
13
B
5.26
14
C
5.26
15
C
5.00
16
C
4.74
17
C
5.00
18
C
4.74
19
C
5.00
20
C
5.26
TOTAL 100.00%
4. A portion of the general common elements is set aside and
reserved for the exclusive use of indivudual 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 therof 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 One"
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 rea-1
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 and is.the last Exhibit hereof and 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. Declarantmay, 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
aft 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. Ari 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,
IM
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 maybe 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
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'hny part thereof, for and
upon the following trusts,, terms, covenants and agreements, to -wit:
-10
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 c.ont.aine a 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 t.o 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 eventd 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*
-11-
assessed against each condominium
thereof at the time the
a money judgment for unpaid
without foreclosing or waiving
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
` 16
/ 19-7 `.
therefor from a prospective purchaser or tenant:, the remaining
own'e'rs 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
might 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 descendantsor 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,. righ�_of ;a.n. 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.
r
the lives of the now
of said descendants
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.pr.oposed 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
appointment of an attorney-in-fact to deal.with the property -upon
its destruction or.obsolesoenee.
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 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.
-15-
(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
small 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 assesrmient made in
connection with such plan shall be a common expense anti inade 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
-16-
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 allperiods 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 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, 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
s
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 2 day of '`� 1976.
NICHOLS COMPANY, A PARTNERSHIP
By:
H. G. Nichols,Cr-_/ a Partner
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
BEFORE ME, the under gned authority, on this day personally
appeared H. G. Nichols, 2 , known to me to be the person and partner
whose name is subscribed t o 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.
GI N UNDER MY HAND AND SEAL OF OFFICE th7-- day of
"At -181 /ind LUA) 1976.
NUFARI PUBLIC IN AND FOR
JEFFE-RSON COUNTY, TEXAS
EXHIBIT "B"
BY --LAWS
OF
MARSHALL PLAOE•,TOWNHOUSES
SECTION ONE
ARTICLE I.
OBJECT
(Plan of Apartment Ownership)
1. The purpose fo'r which this non-profit Association
is formed is to govern the condominium property situated in the
County of Jefferson, 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 pro-
visions 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 declara-
tion, 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
ownership 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.
bko
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 weighed so as to coincide with the
percentages assigned in the Declaration.
4. Quorum. Except as otherwise provided in these _By -
Laws, 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 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
Association shall be held on or before one year after the date here-
of. 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 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
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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 al 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.
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
cuss 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, con-.
dations, restrictions, uses, limitations, obligations, and all other
provisions 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 or.maintenance 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.
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(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 several 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 anddeliver annually to each owner a
statement showing all receipts, expenses or disbursements since the
last such statement.
(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 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.
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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 elec-
tion 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.
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.
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2. Election of Officers. The officers of. the Associa-
tion 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 vested in the office
of President of an association, including,,but not limited to,.the
,power'to appoint committee 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 the minutes 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 accurate 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 wilful misconduct. In the
event of a.settlement, indemnification shall be provided only in
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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 indemnification 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 assess-
ments shall be made pro rata 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.
Ta_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 belonging.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 line becomes 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 reimbursement 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 replacing any general or limited common
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7
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 against 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 liti-
gation. Disbursements of such funds or proceeds shall be made to
insure payment of or on account of such final judgment or settle-
ment. Any deficiency 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 fore-
closed as is provided in paragraph 24 of the Declaration.
4. General.
(a) Each owner shall comply strictly with the pro-
visions 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.
(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 modifica-
tions 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 is 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 or 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 law-
ful rights of the other owners.
7. Right of Entry.
(a) An owner shall grant the right.of entry to
IM
r
. i
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
representatives, when so required, to enter his unit for the pur-
pose of performing installations, alterations or repairs to the
mechanical or electrical services, provided that requests for
entry are made in advance and that such entry is at a time con-
venient 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
commodity, 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
manner 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 con-
dominium regime established by the foregoing Declaration.
(d) The common area is intended for use for the pur-
pose of affording vehicular and pedestrian movement within the con-
dominium, 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 land-
scaping and such other means as shall be deemed appropriate. No
part of the common 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 pur-
poses after the completion of the construction of the units by
developer, nor anything done thereon in any manner which shall
increase the rate for hazard and liability insurance covering said
area and improvementssituated 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
,LUT•-«7�'
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 advertisements, 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 dens 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 parka 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 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)
consecutive 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 Obs'ole'scehce. Each owner shall,
upon becoming an owner of a condominium unit, execute a power
of attorney in favor of the Association, irrevocably appointing
the Association 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.
-10,
ARTICLE VIII
AMENDMENTS TO PLAN OF APARTMENT OWNERSHIP
19. By -Laws. These By -Laws may be amended by
ation at a duly.omstituted meeting for such purpose, and
shall take effect.unless approved by owners representing
70% of the aggregate interest of the undivided ownership
common elements.
ARTICLE IX.
MORTGAGES
the Associ-
no amendment
at least
of the general
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 on 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 3.0 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
codominium 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 common elements.of the Condominium project if such loss
or taking exceeds $10,000.00.
ARTICLE. X
COMPLIANCE
These By -Laws are set forth to comply with the require-
ments of the State of Texas Condominium Ownership Act. If any
of these By -Laws conflict with the provisions of -said statute,
itis 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
may receive any property or funds shall receive or shall be law-
fully 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 dis-
tributed to, or inure -to the benefit of any.member of the Board
of Managers; povided,'however, always (1) that reasonable com-
pensation 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 Asso-
ciation.
ARTICLE XII.
The Registered office and the principal office for the
transaction of business of this Association shall be 3679 Calder
-11-
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 h reunto set
their hands and seals, at Beaumont, Texas, this .day of
BOARD OF MANAGERS
H. G. Nichols, Sr. H. G. Nichols, r.
eed Nichols
NICHOLS COMPANY, A PARTNERSHIP
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., H. G. Nichols, Jr..,
and Reed Nichols, known to me to be the persons, -,whose names are
subscribed to the foregoing instrument, and acknowledged to me
that they executed the same for the purposes and considerations
therein expressed.
%({J GIV�E7N1�7 UNDER MY v/AND AND SEAL OF OFFICE this ',9"7L ay of
NOTA Y PUBLIC IN AND FOR
JEFFERSON COUNTY, TEXAS
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 consideration expressed and in
the capacity 'stated therein, and that he was authorized to do so.
GIVEN.UNDER MY NAND AND SEAL OF OFFICEthis day
x--
of
%/ .
NOTARY PUBLIC IN AND FOR
JEFFERSON COUNTY, TEXAS
-12-
CONDOMINIUM DECLARATION
FOR
MARSHALL PLACE TOWNHOUSES
SECTION TWO
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,
to -wit:
ITEM ONE
BEING a 5.000 acre tract out ofthe H. Williams Survey,
Abstract No. 56, Beaumont, Jefferson County, Texas:
ALL THAT CERTAIN tract or parcel of land being out of
that certain 22.83 acre tract described in deed dated
April 30, 1973 from Sybil Howth, et al to Nichols
Development Company of Beaumont, Texas, and recorded
in Volume 1781, Page 130 Deed Records of Jefferson
County, Texas, said herein described tract being more
fully bounded and described as follows:
BEGINNING at the northeast corner of the herein des-
cribed tract and the northeast corner of said 22.83
acre tract, said corner being the northwest corner of
Rogers Park;
THENCE South zero degrees forty-three minutes thirty
seconds East (S 001 43' 3011E) along the east line of the
herein described tract and along the west line of Rogers
Park for a distance of three hundred eighty-eight and
forty-nine hundredths feet (388.491) to a point for
the southeast corner of the herein described tract;
THENCE South eighty-nine degrees fifteen minutes thirty
seconds West (S 890 151 30" W) for a distance of ninety-
five and eight hundredths feet (95.081) to a point for
corner;
THENCE South eighty-two degrees three minutes seventeen
seconds West (S 820 03' 17" W) for a distance of fifty
and Forty-six hundredths feet (50.46') to a point for
corner on the arc of a curve;
THENCE in a westerly direction along the arc of a
curve having a central angle of thirty-nine degrees
fifty-six minutes thirteen seconds (39° 56' 13"),, a
radius of seventy and zero hundredths feet (70.00')
a long chord which bears North seventy degrees forty-
six minutes twenty-three seconds West (N 701 46' 23"W)
for an arc distance of forty-eight and seventy-nine
hundredths feet (48.79') to a point of tangency;
THENCE South eighty-nine degrees fifteen minutes thirty
seconds West (S 891 15' 30" W) for a distance of three
hundred eighty-four and forty-eight hundredths feet
& h3J G
(384.481) to the southwest corner of the herein described
5.000 acre tract;
THENCE with the west line North zero degrees forty-
four minutes thirty seconds West (N 000 44' 30"W) for
a distance of three hundred seventy-three and sixteen
hundredths feet (373.161)to the northwest corner;
THENCE with the north line North eighty-eight degrees
forty-three minutes thirty-six seconds East (N 88° 43'
36" E) for a distance of five hundred seventy-four
and seventy hundredths feet (574.701) to the PLACE
OF BEGINNING;. containing in area 5.000 acres of land,
more or less.
SAVE AND EXCEPT therefrom the following described 2.2127
acre portion thereof, to -wit:
BEING a 2.2127 acre parcel of land out of that certain
22.83 acre tract described in deed dated April 30,
1973 from Sybil Howth, et al to Nichols -Development
Company of Beaumont, Texas and recorded in Volume.1781,
Page 130 of the De:ed Records of Jefferson County, Texas,
said herein described tract being more fully bounded
and described as follows:
BEGINNING at the northeast corner of the herein
described tract and the northwest corner of the
City of Beaumont's Rogers Park;
THENCE South zero degrees forty-three minutes thirty
seconds East (S 000'43' 30" E) along the east line
of the herein described tract.and the west line of
Rogers Park for a distance of.three hundred eighty-
eight and forty-nine hundredth's feet (388.491) -
to the southeast corner of the herein described tract
and the northeast corner of Lot 5, Block 1, Marshall
P1ace'Addition to the City of Beaumont;
THENCE with the south line of the herein described
tract and the north line of Lot 5, Block 1, South
eighty-nine degrees fifteen minutes thirty seconds
West (S 890 15' 30"W) for a distance.of ninety-
five and eight hundredths feet (95.08') to a point
for corner;
THENCE continuing with the south line of the herein
described tract and the north"line of Lot 5, Block 1,
South eighty-two degrees three minutes seventeen seconds
West (S 82° 03' 17" W) for a distance of fifty and forty-
six hundredths feet (50.461) to the northwest -'corner of
Lot 5, Block 1, said corner being'in the northeasterly
line of Marshall Place Drive and a point on a curve to
the left having a.central angle of thirty-nine degrees
fifty-six minutes thirteen seconds, (390 56' 13"), a,
radius of seventy feet (70');
THENCE along the said curve to the left whose long
chord bears North seventy degrees -forty-six minutes
twenty-three seconds West (N 700 46,,23"W) a distance
of forty-seven and eighty-one hundredths feet'(47.811).
for an are distance of forty-eight and seventy-nine
hundredths feet (48.791) to a point of tangency;
-2-
THENCE continuing with the south line of the herein
described teact and the north line of Marshall Place
Drive South eighty-nine degrees fifteen minutes
thirty seconds West (S 89° 15' 30". w) for a distance
of sixty and forty-two hundredths feet (60.421) to
the southwest corner of the herein described tract;
THENCE North zero degrees forty-four minutes thirty
seconds West (N 000 44' 30" W) along the west line
of the herein described tract.for a distance of
three hundred seventy-six and sixteen hundredths
feet (367.161) to the northwest corner of the herein
described tract;
THENCE with the north line North eighty-eight degrees
forty-three minutes thirty-six seconds East (N 881
43' 36" E) for a distance of two hundred fifty and
sixty-two hundredths feet (250.621) to the PLACE OF
BEGINNING; containing in area 2.2127 acres of land,
more or less;
ITEM TWO;
A perpetual easement on, over and across the west 14' of the
above described 2.2127 acre tract of land.
This Item Two is for the purpose of providing access
to said Item one and shall carry with it the right
to build and maintain a paved private street on, over,
and across same. This Item Two is an exclusive easement,
with the exception that the owner of said 2.2127 acre
tract, 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 2.2127 acre tract.
Notes Item One is subject to a perpetual easement on,
over and across the east 14' thereof.
This easement is for the purpose of providing access
to said 2.2127 acre tract and for and tothe owner or
owners thereof, whether present or future, and shall -
carry with it the right.to build and maintain 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 -Two; 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) one-story buildings and (1) two-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 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;
-3-
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) "0wner" 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 "prope.rty" 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
00=Pns 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.
-4-
(i) "Association of Unit Owners" or "Association" means a
Texas Non-profit association, the By -Laws of which shall govern
the administration of this condominiumproperty, 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;
(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 in each building being described as follows:
BUILDING A - Containing Six apartments, numbered Units
1, 23 3, 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 five apartments, numbered Units
7, 8, 9, 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 apartments numbered Units
12, 13., 14, 15, 16, 17, and 18, the size, dimensions, lo-
cation, and boundaries of each being detailed on the sur-
vey 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 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 Elements allocated
to each apartment is as follows:
. 5-
r.'
C -4, :7. /z� l7= 9
L-1 cl' 16
Unit
Building
Percentage of
Number
Des'fonation
Ownership
r
1
A
5.84
2
A
5.53
5.25
4
A
5.53
5A
5.25
5.8.4
7
5.84
8
B1
5.53
9
B
5.25
10
B
5.53
11
B.
5.84
12
C
5.84
13
C
5.53
14
C
5.25
15
C
5.53
16
C
5.25
?7
C
5.53
18
C
5.84
TOTAL 100.00%
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 designated
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 Two"
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 ree.ognized,under the laws of the State
of Texas,
10
•
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 and is the last Exhibit hereof and 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
-7-
r
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
art 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 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 susp.end 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 b,y 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 $5.06. The Managing
Agent:or Board of Managers shall prepare and delPer, or -mail, regu-
larly at least every three months to each.owner an itemized statement
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16 L-197
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
t•en 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'asses.sment 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.fore.closure 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 here.inbefore
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, oovensnts. nd asraemonts, to -grit$
-10-
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 t.o 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 Trustee 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 game.
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assessed against each condominium
thereof at the time the
a.money judgment for unpaid
without foreolosing.or waiving
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 forthe
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 o.f 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 expenoes 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
-12-.
therefor from a prospective purchaser or tenant, the remaining
owners shall be given written notice thereof, together with an
executed copy ofsuch 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 beIdeemed, 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.,.thg 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 Deelarati.on.for the period of
the lives of the now
of said descendants
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
Lhe 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 i.ts 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'subjeet 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
appointment of an attorney-in-fact to,
its destruction or •obsoleeoence..
mandatory the irrevocable
.deal.. with the property .upon
ZJ
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 Declar:aht 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.condbminium 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
-Paving 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 improvements) 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.
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(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
th-e 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 j5) 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
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,
'oil 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, 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,,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 � day of �'�'�- , 1976.
NICHOLS COMPANY, A PARTNERSHIP
B • �dy-
y•
H. G. Nichols, c , a Partner
THE STATE OF TEXAS. §
COUNTY OF JEFFERSON §
BEFORE ME, the unders fined authority, on this day personally
appeared H. G. Nichols, , known to me to be the person and partner
whose name is subscribed o 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 UNDLR MY HAND AND SEAL OF OFFICE this ' 'hay of
1_ -Jl i 1976
MO4'-A'RV PTTRT.TC TN AMT) TPnR
d, COUNTY, TEXAS
EXHIBIT "B"
BY-LAWS
OF .
MARSHALL PLACE'TOWNHOUSES
SECTION TWO
ARTICLE Y.
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 Jefferson, 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 pro-
visions 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 declara-
tion, 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
ownership 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 weighed so as to coincide with the
percentages assigned in the Declaration.
4. Quorum. Except as otherwise provided in these By
Laws, 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 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
Association shall be held on or before one year after the date here-
of. 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 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
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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 al 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.
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, con-
ditions, restrictions, uses, limitations, obligations, and all other
provisions 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 or maintenance 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.
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(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 several 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, e.xpenses 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.
(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 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.
—4—
A;_1L1
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 elec-
tion 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.
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.,
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2. Election of Officers. The officers of the Associa-
tion 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 vested in the office
of President of an association, including, but not limited to, the
,power to appoint committee -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 the minutes 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 accurate 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.l.iabl.e for gross negligence or wilful .misconduct. In the
event of a settlement, indemnification shall be.provided only in
Z9
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 indemnification 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 assess-
ments shall be made pro rata 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 belonging 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 line becomes 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 reimbursement 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 replacing any general or limited common
-7-
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 against 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 liti-
gation. Disbursements of such funds or proceeds shall be made to
insure payment of or on account of such final judgment or settle-
ment. Any deficiency 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 fore-
closed as is provided in paragraph 24 of the Declaration.
4. General.
(a) Each owner shall comply strictly with the pro-
visions 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.
S. 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 modifica-
tions 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 is 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 or 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 law-
ful rights of the other owners.
7. Right . of Entry.
.(a) An owner shall grant the right of entry to
11
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
representatives, when so required, to enter his unit for the pur-
pose of performing installations, alterations or repairs to the
mechanical or electrical services, provided that requests for
entry are made in advance and that such entry is at a time con-
venient 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
commodity, 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
manner 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 con-
dominium regime established by the foregoing Declaration.
(d) The common area is intended for use for the pur-
pose of affording vehicular and pedestrian movement within the con-
dominium, 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 land-
scaping and such other means as shall be deemed appropriate. No
part of the common 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 pur-
poses after the completion of the construction of the units by
developer, not anything.done thereon 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
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197
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 advertisements, 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 dens 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 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)
consecutive 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 Obsole's'cence. Each owner shall,
upon becoming an owner of'a condominium unit, execute a power
of attorney in favor of the Association, irrevocably appointing
the Association 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.
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ARTICLE VIII
AMENDMENTS TO PLAN OF APARTMENT OWNERSHIP
19. By -Laws. These By -Laws may be amended by
ation at a duly omstituted meeting for such purpose, and
shall take effect unless approved by owners representing
70% of the aggregate interest of the undivided ownership
common elements.
ARTICLE IX.
mnRTr,AaR9
the Associ-
no amendment
at least
of the general
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 on 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 30 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
codominium 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 common elements of the Condominium project if such loss
or taking exceeds $10,000.00.
ARTICLE X
COMPLIANCE
These By -Laws are set -forth to comply with the require-
ments of the State of Texas Condominium Ownership Act. If any
of these By -Laws conflict with the provisions of.said statute,
itis 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
may receive any property or funds shall receive or shall be law-
fully 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 dis-
tributed to, or inure to the benefit of any member of the Board
of Managers; provided, however, always (1) that reasonable com-
pensation may be paid to any member other than Declarant, H. G.
Nichols, Sr., H. G. Nichols, Jr..Y 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 Asso-
ciation.
ARTICLE XII.
The Registered office and the principal office for the
transaction of business of this Association shall be 3679 Calder
-11-
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 � day of
H.' G. Nichols, Sr.
THE STATE OF TEXAS
COUNTY OF JEFFERSON
BOARD OF MANAGERS
. V& K // � 4 C. �
H. G. Nichols, J1fi.
chols
NICHOLV-
By:
S COMPANY., A PARTNERSHIP
/
H. G. Nichols, Sr., a Partner
BEFORE ME, the undersigned authority, on this day
personally appeared H. G. Nichols, Sr., H. G. Nichols, Jr..,
and Reed Nichols, known to me to be the persons whose names are
subscribed to the foregoing instrument, and acknowledged to me
that they executed the same for the purposes and considerations
therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this '' `"&' _ day of
- - NOTARY, j' PUBLIC. IN AND FOR
JEFFERSON COUNTY, TEXAS
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 subscribedto 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 consideration expressed and in
the capacity stated therein, and that he was authorized to do so.
�? GIVEN. UNDER. MY HAND AND SEAL OF OFFICE this
of
NOTARY PUBLIC IN AND FOR
JEFFERSON COUNTY, TEXAS
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