32 AFTER RECORDING RETURN TO: Tim Hagen Glast, Phillips & Murray, P.C.
2200 One Galleria Tower 13355 Noel Road Dallas, Texas 75240 This Master Declaration establishes master condominium units, which are subject to division into sub-units by the recordation of a condominium declaration that is subordinate to this Declaration. An owner who acquires a sub-unit will be subject to the terms and provisions of this Master Declaration and the terms and provisions of the subordinate declaration that establishes the owner's sub-unit.
MASTER CONDOMINIUM DECLARATION FOR THE HARBOR AT ADRIATICA CONDOMINIUMS STATE OF TEXAS COUNTY OF COLLIN cascos cos KNOW ALL MEN BY THESE PRESENTS: Unofficial This MASTER CONDOMINIUM DECLARATION FOR THE HARBOR AT ADRIATICA CONDOMINIUMS is made and established on February 19 2009, by SB HARBOR MARKET JOINT VENTURE, a Texas joint venture, with its office and principal place of business at 401 Adriatic Parkway, McKinney, Texas 75070.
RECITALS A. Declarant is the fee simple owner of certain real property lying and being situated in Collin County, Texas, and being described on Exhibit "A" attached hereto and made a past hereof for all purposes (the "Property").
B.
Declarant desires to create a condominium regime pursuant to the provisions of the Texas Uniform Condominium Act as set forth in Chapter 82 of the Texas Property Code, as it may be amended from time to time (the "Act").
C₁ Declarant has prepared plans for the construction of eight (8) buildings, a parking garage, and other improvements appurtenant thereto on the Property which when completed shall consist of four (4) or more separately designated condominium units which will be known as The Harbor at Adriatica Condominiums.
ovements appurtenant thereto on the Property which when completed shall consist of four (4) or more separately designated condominium units which will be known as The Harbor at Adriatica Condominiums.
D.
Declarant does hereby establish a plan for (i) the individual ownership in fee simple of estates consisting of the area or space contained in each of the condominium units created by this Master Declaration and (ii) the co-ownership, by the individual and separate unit owners thereof, as tenants in common, of all the remaining property, which includes both Limited Common Elements and General Common Elements.
NOW, THEREFORE, Declarant hereby submits the Property and all improvements thereon to the provisions of the Act, does hereby establish a condominium regime pursuant to the Act, and does hereby publish and declare that the following terms, covenants, conditions, easements, restrictions, reservations, uses, limitations and obligations are hereby established and shall be deemed to run with the land and shall be a burden and a benefit to Declarant, its successors and assigns and to any person or entity acquiring or owning an interest in the Property and all improvements thereon, their grantees, successors, heirs, executors, administrators, devisees and assigns.
official Section 1.1 ARTICLE I Definitions Terms Defined. As used in this Master Declaration, the following terms shall have the meanings set forth below, unless the context shall expressly provide otherwise: A.
"Access Easement" shall mean a perpetual, irrevocable, and non-exclusive easement and right of access and entry to each Unit as may reasonably be necessary for (i) the maintenance,
ovide otherwise: A.
"Access Easement" shall mean a perpetual, irrevocable, and non-exclusive easement and right of access and entry to each Unit as may reasonably be necessary for (i) the maintenance, repair, replacement, or inspection of any of the Common Elements therein or accessible therefrom; (ii) the making of emergency repairs therein necessary to prevent damage to the Common Elements or to any Unit; (iii) the evacuation of all or any part of the Property in the event of an emergency; and (iv) such other reasonable purposes as are deemed by the Master Association to be necessary for the performance of the obligations of the Master Association described in the Governing Documents.
B.
Declaration.
C.
"Act" shall have the meaning given such term in Recital B on Page 1 of this Master "Adriatica Master Declaration" shall mean and refer to the Declaration of Covenants, Conditions and Restrictions for Adriatica, a Croatian Village at Stonebridge Ranch, McKinney, Texas, dated December 16, 2005, recorded as Instrument No. 20060117000065160 in the Official Public Records of the County, as such document may have been or may be modified, amended, or superseded.
D.
"Allocated Interests" shall mean the undivided interests in the Common Elements and the Common Expenses allocated to each Unit, being 20% for the Residential Unit and Office Unit; 60% for the Retail Unit; and 20% for the Hotel Unit, as described on Exhibit "C" to this Master Declaration..
2 E.
"Allocation Document" shall have the meaning given such term in Section 5.1C of this Master Declaration.
F.
"Architectural Reviewer" shall mean Declarant until the expiration of the Declarant
665v1 E.
"Allocation Document" shall have the meaning given such term in Section 5.1C of this Master Declaration.
F.
"Architectural Reviewer" shall mean Declarant until the expiration of the Declarant Control Period. After the expiration of the Declarant Control Period, the rights of the Architectural Reviewer will be exercised or delegated by the Board.
G.
"Assessment" means any charge levied against a Unit, a Sub-Unit, an Owner, or a Sub-Unit Owner by the Master Association, pursuant to this Master Declaration or the Act, including, but not limited to Common Assessments, Special Assessments, Individual Assessments, and Deficiency Assessments, together with dues, fees, charges, interest, late fees, fines, collection costs, attorneys' fees, and any other amount due to the Master Association in connection therewith.
H. "Board" or "Board of Directors" shall refer to the board of directors of the Master Association named in the Certificate of Formation and their successors as duly elected and qualified from time to time.
I.
"Buildings" shall mean the building structures constructed or to be constructed on the Land and identified on the Plat, save and except the Units.
J. "Bylaws" means the bylaws of the Master Association adopted by the Board of Directors, as amended from time to time.
K.
"Certificate of Formation" shall mean the certificate of formation of the Master Association filed with the Secretary of State of Texas, as amended from time to time.
L. "Common Assessment" means the charge against each Owner and such Owner's Unit, representing a portion of the Common Expenses, which are to be paid by each Owner to the Master Association, as provided in Article VI hereof. Common Assessments shall also include charges
ner's Unit, representing a portion of the Common Expenses, which are to be paid by each Owner to the Master Association, as provided in Article VI hereof. Common Assessments shall also include charges assessed against each Owner to maintain a working capital reserve or fund and to cover costs incurred by the Master Association to participate in any condemnation suit, as provided in Section 6.11 of this Master Declaration.
M.
"Common Elements" means and includes all of the Condominium, save and except the Units. Common Elements shall consist of the General Common Elements and the Limited Common Elements.
N.
"Common Elements Easement" shall mean a perpetual, revocable, and nonexclusive easement over the General Common Elements for ingress and egress to and from each Unit, together with the non-exclusive right to access, use, and enjoy the General Common Elements, and the exclusive right to access, use, and enjoy the Limited Common Elements appurtenant to such Owner's Unit, subject to the rights of other Owners to use and enjoy such Limited Common Elements if appurtenant to more than one Unit and subject to rules adopted from time to time by the Master Association.
3 02948-JDB1012050 Harbor Decl-2 #2064665v1 official 0. "Common Expenses" shall mean charges for which the Master Association is responsible, including those related to: (i) maintenance, improvement, replacement, and repair of the Common Elements; (ii) casualty, public liability, and other insurance coverages on the Common Elements required or permitted to be maintained by the Master Association pursuant to the Governing Documents; (iii) governmental impositions levied and assessed against the Common Elements; (iv) utilities relating to the Common Elements; (v) professional services, such as
pursuant to the Governing Documents; (iii) governmental impositions levied and assessed against the Common Elements; (iv) utilities relating to the Common Elements; (v) professional services, such as management, accounting, and legal services; and (vi) such other costs and expenses as may be reasonably related to the proper maintenance, care, operation, and management of the Common Elements and the administration of the Master Association. Common Expenses shall not include the costs and expenses of the initial construction and marketing of the Units, which shall be the sole responsibility of Declarant.
P.
"Condominium" means and includes the Land, the Buildings, the Improvements, the Units, and other structures situated on the Land and all rights, easements, and appurtenances belonging thereto.
Q.
"Condominium Unit" shall mean an individual Unit, together with the interest in the Common Elements (General and Limited) appurtenant to such Unit.
R.
"County" shall mean Collin County, Texas.
official S.
"Declarant" shall mean SB Harbor Market Joint Venture, a Texas joint venture, or its successors or assigns, who acquire the Condominium or any portion thereof for the purposes of development and is designated, in writing, by Declarant as a successor declarant. A designation of a successor declarant must be recorded in the Official Public Records of the County.
T.
"Declarant Control Period" shall mean the period commencing with the recordation of this Master Declaration in the Official Public Records of the County and continuing until the earlier to occur of (i) ten (10) years after the recordation date of this Master Declaration, (ii) three (3) months after Declarant has sold all of the Units to Owners other than Declarant, or (iii) when in the
occur of (i) ten (10) years after the recordation date of this Master Declaration, (ii) three (3) months after Declarant has sold all of the Units to Owners other than Declarant, or (iii) when in the sole opinion of Declarant, the Condominium becomes viable, self-supporting, and operational, as evidenced by a document executed by Declarant and recorded in the Official Public Records of the County.
U.
"Deficiency Assessment" shall have the meaning given to such term in Section 6.4 of this Master Declaration.
V.
"Development Rights" shall have the meaning given to such term in section 11.2 of this Master Declaration.
W. "Dispute" shall mean any claim, grievance, or other dispute arising out of or relating to: (i) the interpretation, application, or enforcement of the Governing Documents; (ii) any conflict or dispute arising between or among two or more Owners; (iii) the proper party to bear a maintenance cost or expense or a capital expenditure or the proper amount of the expense to be 4 02948-JDB\1012050 Harbor Decl-2 #2064665v1 charged or collected; or (iv) the rights, obligations, and duties of any Owner under the Governing Documents, except that the following shall not be considered "Disputes" unless all parties shall otherwise agree to submit the matter to arbitration pursuant to the provisions hereof: (i) a suit by the Master Association to collect assessments or other amounts due from any Owner; (ii) any suit by the Master Association to obtain a temporary restraining order and such ancillary relief as the court may deem necessary to maintain the status quo and preserve the Master Association's ability to enforce the provisions of this Master Declaration; (iii) any suit between Owners which does not include
t may deem necessary to maintain the status quo and preserve the Master Association's ability to enforce the provisions of this Master Declaration; (iii) any suit between Owners which does not include Declarant or the Master Association if such suit asserts a Dispute which would constitute a cause of action independent of the Governing Documents; and (iv) any suit in which the applicable statute of limitations would expire within 180 days of the giving of notice as provided in Article IX of this Master Declaration unless the Owner against whom the Dispute is made agrees to toll the statute of limitations for a period of time necessary to comply with Article IX of this Master Declaration.
X.
"Easements" shall mean collectively, the Access Easement, the Common Elements Easement, the Parking Easement, the Roof Easement, the Support Easement, the Utility Easement, and those easements described in Section 3.6 of this Master Declaration.
Y.
"First Lien Indebtedness" shall mean any indebtedness secured by a first and prior lien or encumbrance upon an Owner's Unit.
Z. "First Mortgagee" shall mean the holder of a First Lien Indebtedness that has provided the Master Association with written notice of its name, address, and description of the Owner's Unit upon which it holds the First Lien Indebtedness.
AA.
"Garage" shall mean the Building identified as the "Garage" on the Plat, including the parking spaces, ramps, staircases, elevators, electrical rooms, vaults, security gates, and other appurtenances, Systems, and Improvements within the Building.
BB.
"General Common Elements" means the Common Elements that are not Limited, Common Elements and includes the Land, the portions of the Condominium that are designated as
vements within the Building.
BB.
"General Common Elements" means the Common Elements that are not Limited, Common Elements and includes the Land, the portions of the Condominium that are designated as General Common Elements on the Plat, and those more particularly described in Section 2.3(E) this Master Declaration.
CC.
ON "Governing Documents" shall mean this Master Déclaration, the Certificate of Formation and the Bylaws of the Master Association, the Regulations, and any other document governing the Condominium or the Master Association.
DD. "Hotel Parking Spaces" shall mean those portions of the Condominium used exclusively for the parking of automobiles by the Hotel Unit and which are designated as Limited Common Elements appurtenant to the Hotel Unit on the Plat.
EE.
"Hotel Unit" shall mean the Condominium Unit designated for hotel purposes, as more particularly described in Section 2.3(D) of this Master Declaration and as shown on the Plat.
5 official FF.
"Improvements" shall mean all Buildings, pavement, fencing, landscaping, recreational facilities, plumbing, electrical and telephone lines and computer cables, and man-made objects of every type, existing or placed on the Land, including all cable television, cellular phone, internet, and other utility or communication installations or equipment.
GG.
"Individual Assessment" shall have the meaning given to such term in Section 6.3 of this Master Declaration.
HH.
"Insurance Proceeds" shall mean any and all proceeds that an Owner or the Master Association is entitled to receive from an insurance company as a result of a casualty or loss in connection with an Owner's Unit or the Common Elements, respectively.
II.
that an Owner or the Master Association is entitled to receive from an insurance company as a result of a casualty or loss in connection with an Owner's Unit or the Common Elements, respectively.
II.
"Land" means that certain tract of real property situated in McKinney, Collin County, Texas, and which is more particularly described on Exhibit "A" attached hereto and made a part hereof for all purposes, together with all and singular the rights and appurtenances pertaining thereto.
JJ. "Legal Requirements" shall mean any and all present and future judicial decisions, statutes, rulings, rules, regulations, permits, certificates or ordinances of any federal, state, or municipal authority in any way applicable to any Owner, any Unit, or the Property, including all applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws, and applicable architectural barrier, health and environmental laws and regulations.
KK.
"Limited Common Elements" means the Common Elements that are not General Common Elements and are reserved for the exclusive use of the Owners of less than all of the Units to the exclusion of the other Owners and Units, as designated as Limited Common Elements on the Plat and as more particularly described in Sections 2.3(A)(1), 2.3(B)(1), 2.3(C)(1), and 2.3(D)(1) of this Master Declaration.
LL.
"Maintenance Standard" shall mean maintenance in good repair in an attractive and clean condition, including the operation, upkeep, repair and restoration, ordinary wear and tear excepted, to the extent necessary to maintain the Condominium or Units, as applicable, in a condition reasonably suitable for its intended purpose.
MM. "Majority of Unit Owners" means those Owners representing a total ownership
essary to maintain the Condominium or Units, as applicable, in a condition reasonably suitable for its intended purpose.
MM. "Majority of Unit Owners" means those Owners representing a total ownership interest of at least fifty-one percent (51%) of the Allocated Interests NN.
"Manager" means an experienced professional manager or management company, if any, appointed by the Board to manage the day-to-day operation of the Condominium and the administration of the Master Association.
00. "Master Association" means The Harbor at Adriatica Master Condominiums Association, Inc., a non-profit corporation, organized pursuant to the Texas Nonprofit Corporation Act, of which all Owners shall be members, and which shall operate and manage the Condominium, in accordance with the Act and this Master Declaration, or any successor entity.
6 official PP.
"Master Declaration" shall mean this Master Condominium Declaration for The Harbor at Adriatica Condominiums, as it may be modified, amended, or superceded from time to time by a document recorded in the Official Public Records of the County.
QQ. "Member" shall have the meaning given to such term in Section 4.3 of this Master Declaration.
RR.
"Occupant" means any Person in possession of a Unit or a Sub-Unit, regardless of whether the person is an Owner of the Unit or a Sub-Unit Owner.
SS.
"Office Parking Spaces" shall mean those portions of the Condominium used exclusively for the parking of automobiles by the Office Unit and which are designated as Limited Common Elements appurtenant to the Office Unit on the Plat.
TT. "Office Unit" shall mean the Condominium designated for office purposes, as more particularly described in Section 2.3(C) of this Master Declaration and as shown on the Plat.
ice Unit on the Plat.
TT. "Office Unit" shall mean the Condominium designated for office purposes, as more particularly described in Section 2.3(C) of this Master Declaration and as shown on the Plat.
UU. "Owner" means a Person owning record title to one (1) or more Condominium Units.
Declarant is the initial Owner of all of the Condominium Units. Contract sellers and mortgagees who acquire title to a Condominium Unit through a deed in lieu of foreclosure or through judicial or non-judicial foreclosure are Owners. Persons or entities having ownership interests merely as security for the performance of an obligation are not Owners. Every Owner is a Member of the Master Association. If a Unit is made the subject of a Sub-Declaration, then for purposes of voting and representation in the Master Association, the term "Owner" (for that Unit only) shall refer to the Sub-Association formed to operate and manage the Unit on behalf of the Sub-Units Owners. Each Sub-Association shall be and is hereby authorized to act, on behalf of the Sub-Units Owners within such Unit, on all matters submitted to or before the Master Association, through a representative designated by the board of directors of the Sub-Association. Nothing herein shall be construed to create any obligation to submit a Unit to a condominium form of ownership unless Sub-Units are created from such Unit.
VV. "Parking Easement" means a perpetual, irrevocable, and non exclusive easement covering the parking areas, as shown on the Plat, for the purpose of maintenance, repair, and security of and relating to the parking areas.
WW. "Past Due Rate" shall mean the lessor of (i) 18% of per annum or (ii) maximum lawful rate of interest under Texas law.
XX.
f maintenance, repair, and security of and relating to the parking areas.
WW. "Past Due Rate" shall mean the lessor of (i) 18% of per annum or (ii) maximum lawful rate of interest under Texas law.
XX.
"Person" shall mean any individual, corporation, partnership, limited liability company, joint venture, estate, trust, unincorporated association, and any fiduciary acting in such capacity on behalf of any of the foregoing.
nofficial 7 YY. "Plat" means or includes the survey of the Land, locating thereon all of the Improvements, the floor and elevation plans and any other drawing or diagrammatic plan depicting a part of, or all of, the Improvements, as same may be amended by amendments to this Master Declaration. The Plat for the initial Improvements is attached hereto as Exhibit "B" and made a part hereof for all purposes. It is expressly agreed and each and every purchaser of a Unit, such purchaser's heirs, executors, administrators, assigns and grantees, hereby agree that the square footage, size and dimensions of each Unit as set out or shown in this Master Declaration or in the Plat attached hereto are approximate and are shown for descriptive purposes only. Declarant does not warrant, guarantee or represent that any Unit actually contains the area, square footage or dimensions shown by the Plat thereof. Each purchaser and Owner of a Unit or interest therein agrees that the Unit had been or will be purchased as actually and physically existing at the time such purchase is closed. Each purchaser of a Unit expressly waives any claim or demand which such purchaser may have against Declarant or any person whatsoever on account of any difference,
t the time such purchase is closed. Each purchaser of a Unit expressly waives any claim or demand which such purchaser may have against Declarant or any person whatsoever on account of any difference, shortage or discrepancy between the Unit as actually and physically existing and as it is shown on the Plat attached hereto. It is specifically agreed that in interpreting deeds, mortgages, deeds of trust, and other instruments for any purposes whatsoever or in connection with any other matter, the existing physical boundaries of a Unit shall be conclusively presumed to be its boundaries, regardless of settling, rising, or lateral movements of the Buildings, and regardless of variances between boundaries as shown on the Plat and those of the Buildings.
ZZ.
"Property" shall have the meaning given such term in Recital A on Page 1 of this Master Declaration, and shall include the Land and the Improvements.
AAA. "Regulations" shall mean the rules and regulations of the Master Association initially approved by the Owners and adopted by the Board of Directors and relating to the appearance, use, disposition, maintenance, and occupancy of the Property, as amended from time to time. All Owners shall be furnished with a copy of the Regulations upon written request to the Master Association.
Each Owner, Sub-Unit Owner, and Occupant shall be required to strictly comply with the Regulations, and shall be responsible to the Master Association for the compliance therewith by the members of their respective families, relatives, guests, employees, tenants, customers, or invitees, both minor and adult.
BBB. "Residential Parking Spaces" shall mean those portions of the Condominium used exclusively for the parking of automobiles by the Residential Unit and which are designated as
both minor and adult.
BBB. "Residential Parking Spaces" shall mean those portions of the Condominium used exclusively for the parking of automobiles by the Residential Unit and which are designated as Limited Common Elements appurtenant to the Residential Unit on the Plat.
CCC. "Residential Unit" shall mean the Condominium Unit designated for residential purposes, as more particularly described in Section 2.3(A) of this Master Declaration and as shown on the Plat.
DDD. "Retail Parking Spaces" shall mean those portions of the Condominium to be used exclusively for the parking of automobiles by the Retail Unit and which are designated as Limited Common Elements appurtenant to the Retail Unit on the Plat.
8 nofficial EEE. "Retail Unit" shall mean the Condominium Unit designated for retail purposes, as more particularly described in Section 2.3(B) of this Master Declaration and as shown on the Plat.
FFF. "Roof Easement" shall mean a perpetual, irrevocable, and exclusive easement over and above the entire surface of the roof of each Building for electric, satellite, telecommunications, transmitting and similar equipment, roof signage, and for placement of air conditioning condenser units as specified in Section 3.6(E).
GGG. "Special Assessment" shall mean the Assessments established by the Board of Directors under the provisions of Section 6.2 of this Master Declaration from time to time and shall include, but not be limited to, the following: 1.
The cost of any construction, reconstruction, repair or replacement of any of the General Common Elements; or 2.
The expense of any other contingencies or unbudgeted costs; provided that any such assessment (and the method of billing and collection for such assessment) shall have
e General Common Elements; or 2.
The expense of any other contingencies or unbudgeted costs; provided that any such assessment (and the method of billing and collection for such assessment) shall have the consent of Owners representing an aggregate ownership interest of at least sixty-seven percent (67%) of the Allocated Interests. Any amounts assessed pursuant hereto shall be assessed to the Owners in proportion to the Allocated Interest of each Owner. Special Assessments may be billed or collected on a monthly basis or single payment or on any other basis described in the consent.
HHH. "Special Declarant Rights" shall have the meaning given to such term in Section 11.1 of this Master Declaration.
III. "Structure" shall mean all foundations, footings, columns, flat slabs, sheer walls, girders, support beams, post tension cables or rods, including any and all other structural components that support, uphold, or are a part of a Building, as shown and set forth on the Plat. A Structure shall be deemed a single Structure hereunder, even though it may be divided into separate Units.
JJJ.
"Sub-Association" means a non-profit corporation, organized pursuant to the Texas Nonprofit Corporation Act, created as a part of a Sub-Condominium to act on behalf of all of the Sub-Unit Owners of a Unit, and which shall operate and manage the Unit in accordance with the Act this Master Declaration, and the Sub-Declaration.
KKK. "Sub-Condominium" means a separate condominium regime created by the submission of a Unit to the terms and provisions of a Sub-Declaration by an Owner.
LLL. "Sub-Declarant" means the declarant or declarants designated as such in a Sub.Declaration.
MMM. "Sub-Declaration" means a condominium declaration filed of record in the Official
on by an Owner.
LLL. "Sub-Declarant" means the declarant or declarants designated as such in a Sub.Declaration.
MMM. "Sub-Declaration" means a condominium declaration filed of record in the Official Public Records of the County to create two (2) or more Sub-Units from a Unit. Notwithstanding the foregoing, the recordation of a Sub-Declaration shall not constitute a subdivision of the Unit or the Condominium for zoning or regulatory purpose.
9 02948-JDB1012050 Harbor Decl-2 #2064665v1 nofficial NNN. "Sub-Unit" means a condominium unit created out of a portion of a Unit pursuant to the terms and provisions of a Sub-Declaration.
000. "Sub-Unit Owner" shall mean any Person who holds fee simple title to a Sub-Unit, including an undivided interest in the common elements of a Sub-Condominium, but does not include a Person having an interest in a Sub-Unit solely as security for an obligation.
PPP. "Support Easement" shall mean a perpetual, irrevocable, and non-exclusive easement for support of all portions of the Structure that support, uphold, or are a part of any Building.
QQQ. "Systems" shall mean all fixtures, equipment, pipes, lines, wires, computer cables, conduits, circuits, junction boxes, hangers, pull boxes, terminal points, electronic devices, air compressors, air handlers, chillers, and other systems used in the production, heating, cooling, and/or transmission of air, water, gas, electricity, communications, waste water, sewage, and audio or video signals, including the main switch gear conduits, plumbing chases, and mechanical shafts on the Property, and including any of such items that may be shown on the Plat.
RRR. "Unit" shall mean a physical portion of the Condominium that is designated for
umbing chases, and mechanical shafts on the Property, and including any of such items that may be shown on the Plat.
RRR. "Unit" shall mean a physical portion of the Condominium that is designated for separate ownership or occupancy (the boundaries of which are depicted on the Plat) with the unrestricted right of ingress thereto and egress therefrom, and which includes: (i) all Systems which exclusively serve such Unit; and (ii) the finish materials and fixtures contained in the Unit, but excludes (x) any portion of the Structure and the structural components of the Building in which such Unit is located, and (y) Systems which serve more than one Unit, all as subject to and further described in Section 82.052 of the Act.
SSS. "Utility Easement" shall mean a perpetual, irrevocable, and non-exclusive easement for utilities.
TTT. "Working Capital Contribution" shall mean an amount equal to the Common Assessments multiplied by two (2) to be contributed to the Master Association by each Owner as provided in Section 6.11 of this Master Declaration.
Section 1.2 Number and Gender. Whenever the context requires, references in this Master Declaration to the singular number shall include the plural, and, likewise, the plural number shall include the singular, and words denoting gender shall include the masculine, feminine, and neuter.
ARTICLE III General Provisions Section 2.1 Subject to Documents.
A.
The Condominium is held, transferred, sold, conveyed, leased, occupied, used, insured, and encumbered subject to the terms, covenants, conditions, 10 02948-JDB1012050 Harbor Decl-2 #2064665v1 official restrictions, and easements of this Master Declaration, which runs with the land, binds all parties having or acquiring any right, title, or interest in the Condominium,
bor Decl-2 #2064665v1 official restrictions, and easements of this Master Declaration, which runs with the land, binds all parties having or acquiring any right, title, or interest in the Condominium, their heirs, successors, and assigns, and inures to the benefit of each Owner and each Sub-Unit Owner (if any).
B. In addition to the terms and provisions of the Governing Documents, the Condominium is also subject to the Adriatica Master Declaration and any additional covenants, conditions, restrictions, and easements filed of record in the Official Public Records of the County.
Section 2.2 Creation of Units; Plat.
A. Units. The Property is hereby divided into fee simple estates composed of separately designated Condominium Units, and such Condominium Units' undivided interest in and to the Common Elements. Each Condominium Unit, together with such Condominium Unit's undivided interests in the Common Elements, is for all purposes a separate parcel of and estate in real property. The separate parcels of and estates in real property designated hereby shall be created on the date of filing of this Master Declaration in the Official Public Records of the County, and shall continue until this Master Declaration is revoked or terminated in the manner herein provided.
B. Plat. The Plat sets forth, among other things, the following: (1) the legal description of the Land; (2) a general description and diagrammatic plan of the Condominium; (3) all Improvements, including each Unit showing its Building location and floor and, by identifying Unit numbers or letters, as applicable, the Limited Common Elements appurtenant thereto, including the Hotel Parking Spaces, the Office Parking Spaces, the Residential Parking Spaces, and the Retail Parking
umbers or letters, as applicable, the Limited Common Elements appurtenant thereto, including the Hotel Parking Spaces, the Office Parking Spaces, the Residential Parking Spaces, and the Retail Parking Spaces; and (4) such other information as is desirable or required pursuant to Section 82.054 of the Act, including a certification as to compliance with Section 82.059 of the Act. The measurements set forth on the Plat as to each Unit are the measurements taken from the plans and specifications for the Property and may not be precisely accurate as to any Unit due to variances in construction. DECLARANT SHALL NOT BE LIABLE TO ANY OWNER OR SUB-UNIT OWNER AS A RESULT OF ANY DISCREPANCIES IN ACTUAL UNIT MEASUREMENTS FROM THOSE SET FORTH ON THE PLAT, AND EACH OWNER AND SUB-UNIT OWNER, BY ACCEPTING A DEED TO A UNIT OR SUB-UNIT, WAIVES ANY SUCH CLAIM OR CAUSE OF ACTION AGAINST DECLARANT. Upon completion of the construction of the Improvements, Declarant (without the joinder of any other Owner) may file an amendment to this Master Declaration, in the Official Public Records of the County, amending the Plat to reflect the actual measurements for each Unit.
nofficial 11 02948-JDB1012050 Harbor Decl-2 #2064665v1 Section 2.3 Description of Units. Subject to the reservations and the Easements created by Declarant in this Master Declaration, the Units shall include the following: A.
Residential Unit: As depicted on the Plat, the Residential Unit shall consist of those portions of the Condominium that are designated for residential use.
1.
Residential Limited Common Elements. As depicted on the Plat, the Limited Common Elements appurtenant to the Residential Unit shall include the following: B.
(a) the parking spaces and other areas designated as Residential Limited Common Elements
ed on the Plat, the Limited Common Elements appurtenant to the Residential Unit shall include the following: B.
(a) the parking spaces and other areas designated as Residential Limited Common Elements on the Plat; (b) the hallways, balconies, terraces, and patios appurtenant to the Residential Unit; (c) all stairs, balconies, maintenance rooms, walls, floors, ceilings, hallways, lobbies, windows, elevators, and Improvements that serve the Residential Unit exclusively; and all Systems serving the Residential Unit exclusively.
Retail Unit: As depicted on the Plat, the Retail Unit shall include those portions of the Condominium that are designated for commercial retail use.
1.
Retail Limited Common Elements: As depicted on the Plat, the Limited Common Elements appurtenant to the Retail Unit shall include the following: (a) the parking spaces and other areas designated as Retail Limited Common Elements on the Plat; (b) all stairs, walls, floors, ceilings hallways, lobbies, windows, and Improvements that serve the Retail Unit exclusively; and (c) all Systems serving the Retail Unit exclusively.
Unofficial 12 02948-JDB11012050 Harbor Decl-2 #2064665v1 C.
Office Unit: As depicted on the Plat, the Office Unit shall include those portions of the Condominium that are designated for commercial office use.
1.
Office Limited Common Elements: As depicted on the Plat, the Limited Common Elements appurtenant to the Office Unit shall include the following: D.
(a) the parking spaces and other areas designated as Office Limited Common Elements on the Plat; (b) the hallways, balconies, terraces, and patios appurtenant to the Office Unit; (c) all stairs, walls, floors, ceilings, hallways, lobbies, windows, elevators, and Improvements that serve the Office Unit exclusively; and
onies, terraces, and patios appurtenant to the Office Unit; (c) all stairs, walls, floors, ceilings, hallways, lobbies, windows, elevators, and Improvements that serve the Office Unit exclusively; and (d) all Systems serving the Office Unit exclusively.
Hotel Unit: As depicted on the Plat, the Hotel Unit shall include those portions of the Condominium that are designated for hotel use.
1. Hotel Limited Common Elements: As depicted on the Plat, the Limited Common Elements appurtenant to the Hotel Unit shall include the following: (a) the parking spaces and other areas designated as Hotel Limited Common Elements on the Plat; (b) the hallways, balconies, terraces, and patios appurtenant to the Hotel Unit; all stairs, balconies, maintenance rooms, refuse chutes, walls, floors, ceilings, hallways, lobbies, windows, elevators, and Improvements that serve the Hotel Unit exclusively; and (d) all Systems serving the Hotel Unit exclusively.
Unofficial 13 E.
include: General Common Elements. The General Common Elements shall official 1.
The Land; 2.
The Garage, save and except the parking spaces identified as Limited Common Elements on the Plat; 3.
The amphitheater constructed or to be constructed in the general location shown on the Plat and all related appurtenances; and 4. The refuse areas, transformer pads, restrooms, sidewalks and landscaping, and all other walls, floors, ceilings, hallways, Systems, and Improvements that serve more than one Unit; provided, however, sidewalk areas are subject to use by current or future tenants of the Retail Unit in respect to those areas located directly outside of a tenant's storefront.
F.
Declarant's Intention. The detailed descriptions of the Residential
use by current or future tenants of the Retail Unit in respect to those areas located directly outside of a tenant's storefront.
F.
Declarant's Intention. The detailed descriptions of the Residential Unit, the Retail Unit, the Office Unit, the Hotel Unit, the Limited Common Elements, and the General Common Elements provided in this Section 2.3 represent the general intention of Declarant. However, in the event of a discrepancy between the above descriptions and the Plat, the Plat shall control.
Section 2.4 Creation of Sub-Condominium. During the Declarant Control Period, only Declarant shall have the option and ability, by executing and recording a Sub-Declaration which encumbers a Unit and only with the prior written consent of the Owner or Owners of such Unit (if other than Declarant), to create a Sub-Condominium within the boundaries of such Unit. Upon the expiration of the Declarant Control Period, any Owner may create a Sub-Unit Condominium irits Unit at any time without the joinder or consent of any other Owners, provided it obtains the prior written consent of such Owner's First Mortgagee. Any Sub-Unit Condominium created shall be subject in all respects to this Declaration and the Governing Documents. The creation of any SubCondominium shall not modify any obligation, limitation, right, benefit or burden established in this Master Declaration, except as set forth in Section 2.5 below.
Section 2.5 Obligations of Sub-Units. Upon the filing of a Sub-Declaration, any and all obligations (including the obligations to pay Assessments), liabilities, limitations, and rights, benefits or burdens established in this Master Declaration and that are attributable to ownership of the Unit
ions (including the obligations to pay Assessments), liabilities, limitations, and rights, benefits or burdens established in this Master Declaration and that are attributable to ownership of the Unit described in the Sub-Declaration shall automatically be apportioned among the Sub-Units established by the Sub-Declaration. The rights and obligations allocated among Sub-Units will be determined based on the applicable Sub-Declaration, but in any event all rights and obligations allocated to the Unit will be apportioned to each Sub-Unit (as applicable) based on a formula set forth in the Sub-Declaration which created such Sub-Unit. Each formula used to allocate rights and obligations to Sub-Units must utilize objective criteria, e.g., number of Sub-Units, square footage 14 of Sub-Units, etc. Upon the filing of a Sub-Declaration, the percentage of liability for Common Expenses hereunder which had previously been allocated to the Unit described in the SubDeclaration shall be apportioned among the Sub-Units created by the Sub-Declaration in proportion to the common interest allocation assigned to each Sub-Unit pursuant to the Sub-Declaration.
Notwithstanding the foregoing, if a Unit is submitted to the condominium form of ownership as a separate condominium, then only for purposes of voting and representation in the Master Association, the term "Owner" for that Unit only shall thereafter refer to the Sub-Association formed to operate the separate condominium regime on behalf of the Sub-Units Owners.
Unless Declarant or the Master Association elects otherwise, each Sub-Association shall be licensed and required to collect, and shall collect, from each owner of a Sub-Unit the pro rata (or
s Owners.
Unless Declarant or the Master Association elects otherwise, each Sub-Association shall be licensed and required to collect, and shall collect, from each owner of a Sub-Unit the pro rata (or otherwise allocated) share attributable to such Sub-Unit of Assessments levied by the Master Association against the Unit hereunder. Each Sub-Association shall promptly remit to the Master Association any and all amounts collected by such Sub-Association from a Sub-Unit Owner in payment of Assessments levied hereunder. If a Sub-Association fails to timely remit to the Master Association any portion of the Assessments due from a Sub-Unit Owner, then after the Master Association has provided thirty (30) days written notice to the Sub-Association, the license granted hereunder to the Sub-Association to collect Assessments shall terminate, and the Master Association may enforce its lien against the applicable Sub-Unit without the joinder of the Sub-Association.
An Owner that executes and records a Sub-Declaration shall be relieved and released of all rights and obligations assigned to the Unit to the extent, but only to the extent, such rights and obligations are allocated to the Sub-Units established by the Sub-Declaration. Each Sub-Declaration must include the following provision: "Upon the filing of this Sub-Declaration and acceptance of a deed to a Sub-Unit, any and all obligations (including the obligations to pay assessments as provided in the Master Declaration), liabilities, limitations, rights, waivers, benefits or burdens that are vested or that may in the future become vested in or upon the Sub-Declarant in relation to the Sub-Unit, pursuant to the Master Declaration, are hereby assumed by such Sub-Unit Owner and shall automatically be the obligations (including the
vested in or upon the Sub-Declarant in relation to the Sub-Unit, pursuant to the Master Declaration, are hereby assumed by such Sub-Unit Owner and shall automatically be the obligations (including the obligations to pay assessments as defined in the Master Declaration), liabilities, limitations, rights, waivers, benefits or burdens of the Sub-Unit Owner and the SubUnit. In accordance with Section 2.5 of the Master Declaration, the percentage of liability for Assessments and any other expenses under the Master Declaration which had previously been allocated to the Unit subject to the Sub-Declaration is apportioned among the Sub-Units created hereby in proportion to the common interest allocation assigned to each Sub-Unit pursuant to this Sub-Declaration.
EACH SUB-UNIT OWNER AGREES TO INDEMNIFY AND HOLD HARMLESS THE SUB-DECLARANT AND ALL OTHER OWNERS OF SUB-UNITS UNDER THE SUB-DECLARATION FROM SUCH SUB-UNIT OWNER'S SHARE OF ANY AND ALL LIABILITIES, COSTS, EXPENSES (COMMON OR OTHERWISE), CHARGES, AND ASSESSMENTS RELATING OR ASSOCIATED WITH SUCH OWNER'S SUB-UNIT. This 15 nofficial provision does not act to assign any rights retained by the Declarant under the Master Declaration or this Sub-Declaration. Any assignment of Declarant's rights under the Master Declaration or this Sub-Declaration must be by separate instrument, executed by the Declarant and Declarant's assignee, and recorded in the Official Public Records of Collin County, Texas."
Section 2.6 Allocation of Interests in Common Elements. The undivided interest of each Owner in and to the Common Elements shall be allocated based on the percentages set forth in the definition of "Allocated Interests" in Section 1.1 hereof and as further described on
interest of each Owner in and to the Common Elements shall be allocated based on the percentages set forth in the definition of "Allocated Interests" in Section 1.1 hereof and as further described on Exhibit "C" to this Master Declaration. The Common Elements shall remain undivided.
Section 2.7 Inseparability of Units; No Partition. Except for the leasing of portions of the Units, the Special Declarant Rights, the Develop Rights, and the creation of Sub-Condominiums as provided in Section 2.4 of this Master Declaration, each Unit shall be inseparable, and shall be acquired, owned, conveyed, transferred, and encumbered only in its entirety. In no event shall a Unit held by more than one Owner be subject to physical partition and no Owner or Owners shall bring or be entitled to maintain an action for the partition or division of a Unit or the Common Elements.
Any purported conveyance, judicial sale, or other voluntary or involuntary transfer of an undivided interest in the Common Elements without the Unit to which such Common Elements are allocated is void, with the exception of conveyances of Sub-Units in any Sub-Condominium in accordance with the terms and conditions of the Sub-Declaration.
Section 2.8 A.
Permissible Relationships; Description.
Ownership of Unit. A Unit may be acquired and held by more than one Person in any form of ownership recognized by the laws of the State of Texas.
B.
Description of Unit. Any contract or other instrument relating to the acquisition, ownership, conveyance, transfer, lease, or encumbrance of a Unit shall legally describe such Unit by its identifying Unit number or letter, as the case may be, followed by the words "The Harbor at Adriatica Master Condominiums, located
ase, or encumbrance of a Unit shall legally describe such Unit by its identifying Unit number or letter, as the case may be, followed by the words "The Harbor at Adriatica Master Condominiums, located in McKinney, Collin County, Texas," with further reference to the recording data for this Master Declaration (including the Plat and any amendments to the Master Declaration). Each such description shall be good and sufficient for all purposes to acquire, own, convey, transfer, lease, encumber, or otherwise deal with such Unit, and any such description shall be construed to include all incidents of ownership relating to a Unit. Any contract or other instrument relating to the acquisition, ownership, conveyance, transfer, lease, or encumbrance of a Sub-Unit shall tegally describe such Sub-Unit as provided in the Sub-Declaration creating the Sub-Unit, followed by the words "Sub-Unit Condominium" located within "The Harbor at Adriatica Master Condominiums, located in McKinney, Collin County, Texas."
Section 2.9 Mortgage of Unit. An Owner shall be entitled from time to time to mortgage or encumber such Owner's Unit by creating a lien covering such Unit under the provisions of a deed of trust, but any lien created thereby shall be subject to the terms and provisions of this Master 16 nofficial Declaration, and any mortgagee or other lienholder which acquires an Owner's Unit through judicial foreclosure, public sale, or any other means shall be subject to the terms and provisions of this Master Declaration, except as specifically provided to the contrary herein. An Owner that mortgages such Owner's Unit shall notify the Master Association, giving the name and address of the Owner's
is Master Declaration, except as specifically provided to the contrary herein. An Owner that mortgages such Owner's Unit shall notify the Master Association, giving the name and address of the Owner's First Mortgage, and the Master Association shall maintain such information.
Section 2.10 Alteration of Boundaries of Units. If an Owner (including Declarant) or if two (2) Owners own Units which adjoin horizontally (on the same floor), such Owner or Owners shall have the right to relocate the boundaries between such adjoining Units by removing and relocating all or any part of any intervening partition, notwithstanding the fact that such partition may in whole or in part be a Common Element, so long as (i) no portion of any bearing wall or bearing column is weakened or removed and no portion of any Common Element (other than the partition) is damaged, destroyed, or endangered, and (ii) the First Mortgagees of such Owners provide prior, written consent to such relocation or alteration; provided, however, that the Owner or Owners shall have the right to relocate certain Common Elements which are located within the partition (such as pipes, dues, conduits, shafts, vents, ducts, wiring, and the like) so long as such relocation is performed in a good and workmanlike manner by a capable and experienced workman and such Common Elements are fully operational upon completion of such relocation. Any such relocation and costs of repairs caused by such relocation shall be at the sole cost of the Owner or Owners requesting such relocation and shall be completed in a manner designated to cause minimal disruption to the other Owners. Notwithstanding the above, prior to the commencement of any such
ner or Owners requesting such relocation and shall be completed in a manner designated to cause minimal disruption to the other Owners. Notwithstanding the above, prior to the commencement of any such alterations, such Owner or Owners shall submit to the Board of Directors full and complete plans and specifications relating to such alterations and a report of a structural engineer evidencing the feasibility of such proposed alterations. The Board of Directors may request such additional information as it deems necessary to evaluate the alteration request. The Board of Directors shall approve the request if it reasonably determines that no portion of a bearing wall or bearing column shall be weakened or removed and no portion of any Common Elements (except the partition) shall be damaged, destroyed, or endangered. Within a reasonable period of time following its receipt of the plans and specifications and all such other requested information, the Board of Directors shall.
provide to the Owner written acknowledgment of the Board of Directors's receipt of the alteration request and the Board of Directors shall be deemed to have approved such plans and specifications if it fails to disapprove of such plans and specifications in writing within fifteen (15) business days after the Owner's receipt of the Board of Directors' written acknowledgment of receipt of the request for alterations. In such event, the Master Association shall causes an appropriate instrument of amendment to this Declaration to be prepared, executed, and recorded in the Official Public Records of the County. The instrument of amendment shall (i) contain such plats and floor plans as are necessary to show the boundaries between the Units involved, which shall be certified as to their
Records of the County. The instrument of amendment shall (i) contain such plats and floor plans as are necessary to show the boundaries between the Units involved, which shall be certified as to their accuracy by a registered architect or engineer, (ii) recite the occurrence of any conveyance between the Owners of the Units affected, and (iii) specify any fair and equitable reallocation of the Allocated Interest in the Common Elements pertaining to the Units affected, taking into account the size of the new Units, the uses of the new Units, and the Allocated Interests of the Units prior to such relocation of the boundaries. The Master Association hereby agrees to cooperate reasonably with such Owner or Owners in effectuating such amendment to this Declaration, provided that all costs and expenses incurred by the Master Association in connection therewith including attorneys' fees shall be paid 17 official exclusively by such Owner or Owners. In the event any damage is caused to any bearing wall, Common Elements (other than the partition), or another Owner's Unit as a result of an Owner's exercise of the rights granted hereunder, all such damage shall be repaired at the sole cost and expense of the Owner or Owners exercising such rights.
Section 2.11 Additional Units - Garage. Declarant, during the Declarant Control Period, reserves the right to construct additional improvements on the top floor of the Garage. The additional improvements may be composed of one or more Units and/or Common Elements. Upon completion of the construction of such improvements, Declarant (without the joinder of any other Owner) shall file an amendment to this Master Declaration in the Official Public Records of the
s. Upon completion of the construction of such improvements, Declarant (without the joinder of any other Owner) shall file an amendment to this Master Declaration in the Official Public Records of the County amending this Master Declaration and the Plat to reflect such additional improvements. The amendment to this Master Declaration shall, among other things, (i) identify all new Units, General Common Elements, and Limited Common Elements; (ii) designate whether the new Units are part of the existing Residential Unit, Retail Unit, Office Unit, and/or Hotel Unit, or, if the new Unit or Units are not be a part of any existing Unit, identifying the permitted use or uses of the new Unit or Units; (iii) reallocate the Allocated Interests of the Units (including the new Unit or Units) in a fair and equitable manner as determined by Declarant, taking into account the size of the new Unit or Units, the use or uses of the new Unit or Units, and the Allocated Interests of the Units prior to the construction of the new improvements; and (iv) provide such other information and take such other actions as may be required by the Act. Declarant's construction rights shall be assignable, in whole or in part, by Declarant and shall inure to the benefit of Declarant and its successors and assigns.
This Section 2.11 may not be amended without the written consent of Declarant or its assignee.
Section 2.12 Additional Property. Additional real property may be annexed to the Condominium and subject to this Master Declaration and the jurisdiction of the Master Association on approval of Owners representing an aggregate ownership interest of at least sixty-seven percent (67%) of the Allocated Interests or, during the Declarant Control Period, by Declarant as permitted
n on approval of Owners representing an aggregate ownership interest of at least sixty-seven percent (67%) of the Allocated Interests or, during the Declarant Control Period, by Declarant as permitted in Section 11.2 of this Master Declaration. Annexation of additional property shall be accomplished by the recording of a declaration of annexation in the Official Public Records of the County. The annexation document will also include a description of the additional property that complies with the Act.
Section 2.13 Merger. Merger or consolidation of the Master Association with another association must be evidenced by an amendment to this Master Declaration. The amendment must be approved by Owners representing an aggregate ownership interest of at least sixty-seven percent (67%) of the Allocated Interests. Upon merger or consolidation of the Master Association with another association, the properties, rights, and obligations of another association may, by operation of law, be added to the properties, rights, and obligations of the Master Association as a surviving corporation pursuant to the merger. The surviving or consolidated association may administer the provisions of this Master Declaration, together with the covenants and restrictions established upon any other property under its jurisdiction. No merger or consolidation, however, will effect a revocation, change, or addition to the covenants established by this Master Declaration within the Condominium.
nofficial 18 02948-JDB1012050 Harbor Decl-2 #2064665v1 ARTICLE III Uses, Reservations and Restrictions Permitted Uses.
Section 3.1 A.
Residential Unit. The Residential Unit shall be used or occupied solely for residential purposes and related uses associated with the operation of the
s and Restrictions Permitted Uses.
Section 3.1 A.
Residential Unit. The Residential Unit shall be used or occupied solely for residential purposes and related uses associated with the operation of the Residential Unit as a residential living community, including the subdivision of the Residential Unit into Sub-Condominiums.
B. Retail Unit. The Retail Unit shall be used or occupied solely for the sale of retail goods and other commercial purposes that shall be compatible with the operation of the Condominium as a first class, upscale multi-purpose commercial, hotel, and residential project, including the subdivision of the Retail Unit into SubCondominiums. Without limiting the foregoing, the following uses shall be prohibited in the Retail Unit: (1) tattoo parlor; (2) dry cleaning plant; (3) certain types of restaurants as more particularly described in the Bylaws (as the same may be amended from time to time), but not including high quality ready-to-serve food establishments; (4) flea market, swap shop, second hand or "outlet store" selling merchandise that is used, damaged, or discontinued (except vintage or upscale resale); (5) sidewalk markets (except for special events); (6) meeting hall or place of worship; (7) pawn shops; (8) check cashing services; (9) bowling alley, video arcade, game room, skating rink, or billiard room; (10) massage parlor, adult book/pornographic materials store or the showing of hardcore pornographic films; (11) beauty or barber college; (12) health club (personal training studios permitted); (13) place of instruction or any operation catering primarily to students or trainees rather than to customers; (14) funeral parlor; (15) facility for the sale of paraphernalia
ing studios permitted); (13) place of instruction or any operation catering primarily to students or trainees rather than to customers; (14) funeral parlor; (15) facility for the sale of paraphernalia for use with illicit drugs; (16) off-track betting parlor (17) carnival, amusement park or circus; (18) new or used car dealership; (19) gas station, auto repair shop; (20) any use that results in strong obnoxious odors in other spaces; (21) pet kennel or groomer; (22) any human or animal medical services establishment; or (23) any uses that are inconsistent with applicable zoning, the Restrictive Covenants, or prohibited by any Legal Requirements. The Retail Unit Owner shall have the exclusive right to all income derived from kiosks that may be placed in the General Common Elements or the Retail Limited Common Elements located on the street level of the Property provided such kiosks comply with all Legal Requirements.
C. Office Unit. The Office Unit shall be used and occupied solely for office purposes and related uses associated with the operation of the Office Unit for office purposes, including the subdivision of the Office Unit into SubCondominiums. Without limiting the foregoing, the following uses shall be prohibited in the Office Unit: (1) a business that specializes in bankruptcy or liquidation sales or the selling of fire damaged items; (2) an auction house, flea market, pawn shop, thrift store or other store which sells used or "second-hand" 19 02948-JDB\1012050 Harbor Decl-2 #2064665v1 nofficial merchandise; (3) a kennel or other business involving the boarding or care of animals; an adult type bookstore or other establishment selling, renting, displaying or exhibiting pornographic or obscene materials (including without
other business involving the boarding or care of animals; an adult type bookstore or other establishment selling, renting, displaying or exhibiting pornographic or obscene materials (including without limitation, magazines, books, movies, videos, photographs or so called "sexual toys") or providing adult type entertainment or activities (including, without limitation, any displays or activities of a variety involving, exhibiting or depicting sexual themes, nudity or lewd acts); (5) a sexually oriented massage parlor; (6) a gambling establishment or betting parlor; (7) a mortuary, crematorium or funeral home; (8) a dry-cleaning plant, central laundry or laundromat; (9) a storage or mini warehouse facility; (10) any use which is illegal or which, in the reasonable opinion of the Board, is offensive by reason of odor, fumes, dust, smoke, noise or pollution, or hazardous by reason of excess danger of fire or explosion; or (11) any use which, in the reasonable opinion of the Board, constitutes a public or private nuisance or hazardous or offensive use or threatens the life or safety of other Owners or Occupants. Nothing in this Master Declaration shall prevent an Owner or a Sub-Unit Owner from leasing or renting out all or any part of the Unit owned by such Owner or all or any part of the Sub-Unit owned by such Sub-Unit Owner, subject to the terms and provisions of this Master Declaration.
D.
Hotel Unit. The Hotel Unit shall be used or occupied solely for hotel purposes and related uses associated with the operation of the Hotel Unit as a hotel, including the subdivision of the Hotel Unit into Sub-Condominiums.
E.
Leasing of Units. Units (or portions thereof) may be leased; however, no lease of all or any portion of the Retail Unit, the Residential Unit, or the Office
of the Hotel Unit into Sub-Condominiums.
E.
Leasing of Units. Units (or portions thereof) may be leased; however, no lease of all or any portion of the Retail Unit, the Residential Unit, or the Office Unit shall be made for transient or hotel purposes or for any term of less than one year with respect to the Office Unit and the Retail Unit or for any term of less than six (6) months with respect to the Residential Unit. Any such lease shall be in writing, shall state that it is subject in all respects to the provisions of the Governing Documents, and shall provide that any failure by the tenant thereunder to comply with the terms and provisions of the Governing Documents shall be and constitute a default under such lease. A copy of each lease of a portion of the Office Unit or the Retail Unit shall be submitted to the Master Association promptly following execution (provided that the financial terms of a lease may be redacted by the Owner of the Office Unit or by the Owner of the Retail Unit from the copy submitted to the Master Association). Upon request of the Master Association, the owner of the Residential Unit shall make available to the Master Association copies of the leases, of any portion of the Residential Unit (provided that the financial terms of a lease may be redacted by the Owner of the Residential Unit from the copy submitted to the Master Association). No portion of the Retail Unit or the Office Unit shall be leased for residential purposes, and no portion of the Residential Unit shall be leased for commercial purposes; provided, however, that this restriction will not prohibit an Occupant of the Residential Unit from using such Occupant's Sub-Unit for personal, business, or professional purposes, provided that: (1) such use is incidental to the 20
triction will not prohibit an Occupant of the Residential Unit from using such Occupant's Sub-Unit for personal, business, or professional purposes, provided that: (1) such use is incidental to the 20 02948-JDB1012050 Harbor Decl-2 #2064665v1 nofficial Occupant's residential use; (2) such use conforms to all Legal Requirements; (3) there is no external visible evidence of such use; and (4) such use does not entail visits to the Occupant's Sub-Unit by the public, employees, suppliers, or clients.
F. Use of Common Elements. The use, maintenance, and operations of the Common Elements shall not be obstructed, damaged, or unreasonably interfered with by any Owner, and may be subject to lease, concession or easement, presently in existence or entered into by the Board at some future time. Without limiting the generality of the foregoing provisions of this Section 3.1(F), use of the Condominium by the Owners and the Sub-Unit Owners shall be subject to the following restrictions: 1.
Nothing shall be stored in the Common Elements, without the prior written consent of the Board, except in storage areas or as otherwise expressly provided in the Governing Documents; 2. Nothing shall be done or kept in any Unit or in the Common Elements which will increase the rate of insurance for the Condominium, without the prior written consent of the Board. No Owner shall permit anything to be done or kept in such Owner's Unit or the Common Elements which will result in the cancellation of insurance on any Unit, or any part of the Common Elements, or which will be in violation of any law; 3. No waste shall be committed in or on the Common Elements; 4.
Subject to Declarant's rights set forth in this Master Declaration, any signs, advertising, posters, political placards,
ion of any law; 3. No waste shall be committed in or on the Common Elements; 4.
Subject to Declarant's rights set forth in this Master Declaration, any signs, advertising, posters, political placards, banners, flags, stickers, billboards, speakers, lighting, awnings, canopies, or shutters that are to be displayed to the public view on or from any Unit or Common Elements shall be subject to the prior written consent of the Board or the written consent of the Manager acting in accord with the Board's direction; 5. No noxious or offensive activity shall be carried on, in or upon the Common Elements, nor shall anything be done therein which may be or become an unreasonable annoyance or a nuisance to any other Owner. No loud noise or noxious odors shall be permitted within the Condominium, and the Board shall have the right to determine if any such noise, odor, or activity constitutes a nuisance.
Without limiting the generality of any of the foregoing provisions, no exterior speakers, horns, whistles, bells or other sound devices (other than security devices used exclusively for security purposes), noisy or smoky vehicles, large power equipment or large power tools, unlicensed off-road motor vehicles, or other items which may unreasonably interfere with any Owner's use of such Owner's Unit or 21 02948-JDB\1012050 Harbor Decl-2 #2064665v1 nofficial any Sub-Unit Owner's use of such Owner's Sub-Unit shall be located, used or placed on any portion of the Condominium or exposed to the view of other Owners or Sub-Unit Owners, without the prior written approval of the Board; 6.
No activities will be conducted in the Condominium which are or might be unsafe or hazardous to any person or property.
Without limiting the generality of the foregoing, no firearms or
f the Board; 6.
No activities will be conducted in the Condominium which are or might be unsafe or hazardous to any person or property.
Without limiting the generality of the foregoing, no firearms or fireworks may be discharged within the Condominium and no open fires are permitted, without the prior written approval of the Board; 7. No portion of the surface of the Land will be used for the purpose of mining, quarrying, drilling, boring, or exploring for or removing oil, gas, or other hydrocarbons, minerals of any kind, rocks, stones, sand, gravel, aggregate, or earth; 8. No antenna for the transmission or reception of telephone, television, microwave, or radio signals may be placed on any Improvement, without the prior written approval of the Board; 9. No mobile homes, travel trailers or recreational vehicles may be parked or placed overnight on any portion of the Condominium; 10. No aluminum foil, reflective film or similar window treatment may be placed on or within any Unit. All window treatments incorporated into any Unit will be of uniform design and approved in advance by the Board; 11. No window or wall-type air conditioner will be permitted to be used, placed, or maintained on or any Unit without the advance written consent of the Board; 12.
Except as expressly provided herein, nothing shall be altered or constructed in or removed from the Common Elements, except upon the prior written consent of the Board; 13. No structure of a temporary character, trailer, tent, shack, garage, barn or other outbuildings shall be permitted on the Condominium at any time, temporarily or permanently, except with the prior written consent of the Board; provided, however, that temporary structures may be erected for use in connection with the
the Condominium at any time, temporarily or permanently, except with the prior written consent of the Board; provided, however, that temporary structures may be erected for use in connection with the construction, repair, or rebuilding of the Buildings or any Improvements or any portion thereof; nofficial 22 14.
No rubbish, trash or garbage or other waste material shall be kept or permitted upon any Unit or the Common Elements, except in sanitary containers located in appropriate areas screened and concealed from view; and no odor shall be permitted to arise therefrom so as to render the Condominium or any portion thereof unsanitary, unsightly, offensive or detrimental to any other property in the vicinity thereof or to its occupants; 15. No vehicle shall be parked, stored or kept except wholly within the parking space or spaces designated therefor, and no inoperable vehicle shall be stored in a parking space or within the Common Elements. No large commercial-type vehicle (dump truck, cement-mixer truck, oil or gas truck, delivery truck and any other vehicle equipment, mobile or otherwise, deemed to be a nuisance by the Board) or any recreational vehicle (camper unit, motor home, truck, trailer, boat, mobile home or other similar vehicle deemed to be a nuisance by the Board) shall be parked, stored or kept within the Condominium or adjoining the Condominium. Parking spaces shall be used for parking purposes only; 16. No animals, livestock, reptiles, or poultry of any kind shall be raised, bred, or kept in any Unit or the Common Elements, without the prior written consent of the Board; provided, however, each Sub-Unit Owner or Sub-Unit Owners of a Sub-Unit within the
nd shall be raised, bred, or kept in any Unit or the Common Elements, without the prior written consent of the Board; provided, however, each Sub-Unit Owner or Sub-Unit Owners of a Sub-Unit within the Residential Unit may keep two (2) cats; two (2) dogs; or one (1) cat and one (1) dog. Only fish and birds may be kept in Units subject to rules and regulations adopted by the Master Association, provided they are not kept, bred or maintained for commercial purposes or in unreasonable quantities. The Master Association, acting through the Board, shall have the right to prohibit maintenance of any animal which constitutes, in the opinion of the Board, a nuisance to any other Owner; and 17.
In order that Declarant may establish the Condominium as a fully occupied condominium, no Owner nor the Master Association shall do anything to interfere with, and nothing in this Master Declaration shall be understood or construed to: a.
Prevent Declarant, its successors or assigns, or its or their contractors or subcontractors from doing in any Building, Unit, or Sub-Unit owned by Declarant or its successors or assigns, whatever such parties determine to be necessary or advisable in connection with the completion of any work thereon; Unofficial 23 02948-JDB1012050 Harbor Dacl-2 #2064665v1 G.
b. Prevent Declarant, its successors or assigns, or its or their representatives from erecting, constructing and maintaining on the Common Elements, the Buildings, or any Unit or Sub-Unit owned or controlled by Declarant, its successors or assigns, or its or their contractors or subcontractors such other structures as may be reasonably necessary for the conduct of its or their business of completing any work and establishing the Condominium as a condominium and disposing of the same by sale, lease
her structures as may be reasonably necessary for the conduct of its or their business of completing any work and establishing the Condominium as a condominium and disposing of the same by sale, lease or otherwise; C.
Prevent Declarant, its successors or assigns, or its or their representatives from maintaining a sales office and maintaining and showing model Units and/or Sub-Units.
d.
Prevent Declarant, its successors or assigns, or its or their contractors or subcontractors from maintaining a sign or signs for the marketing of Units and/or Sub-Units.
Reservation of Variance. Notwithstanding any provision of this Master Declaration to the contrary, Declarant reserves unto itself the exclusive right to amend the Plat and to vary the size, shape, physical lay-out or location of unsold Units; and to adjust the Allocated Interests of the unsold Units. Such adjustment in the percentage of ownership of the Common Elements will not affect those Units owned by parties other than Declarant. This reservation shall not work to readjust or reallocate any vested interests in the Common Elements appurtenant to any sold Units.
Section 3.2 Architectural Control. Each Unit and the Common Elements shall also be subject to limitations on use, occupancy, architectural standards, and such other matters as shall be determined by the Master Association and as set forth in the Regulations, which shaN at all times be consistent and in compliance with applicable zoning, Legal Requirements, and the Adriatica Master Declaration.
Section 3.3 Sales Activities. At all times when Declarant is an Owner, Declarant shall have the right to conduct on the Property all operations necessary in its sole discretion to complete
eclaration.
Section 3.3 Sales Activities. At all times when Declarant is an Owner, Declarant shall have the right to conduct on the Property all operations necessary in its sole discretion to complete the construction and development of the Condominium and to market or lease any portion of the Hotel Unit, Retail Unit, Office Unit, or the Residential Unit. Irrespective of any restriction or regulation, Declarant or its agents may enter upon the Property and operate thereon such vehicles and equipment as shall be necessary in the sole discretion of Declarant or its agent for such purposes.
24 nofficial 02948-JDB1012050 Harbor Decl-2 #2064665v1 Declarant shall have the right to use any part of the Residential Unit, the Retail Unit, and/or the Office Unit as a model unit and/or leasing or sales office in connection with the selling or leasing of any portion of the Retail Unit, the Office Unit, or the Residential Unit. In addition, Declarant shall have the right to place upon the Common Elements signs designating such offices in advertising the leasing or sale of any portion of the Retail Unit, the Office Unit, or the Residential Unit. All actions relating to the foregoing must be in compliance with the Act, Legal Requirements, and the Regulations.
Section 3.4 Compliance with the Governing Documents. Each Owner, by accepting or possessing title to an Owner's Unit and any Occupant or tenant having the right to occupy any portion of an Owner's Unit pursuant to a lease granted by an Owner, shall automatically be deemed to have agreed to strictly comply with the provisions of the Governing Documents and all Legal Requirements. A failure or refusal to so comply with any such provisions, after written notice, shall
med to have agreed to strictly comply with the provisions of the Governing Documents and all Legal Requirements. A failure or refusal to so comply with any such provisions, after written notice, shall be grounds for an action to recover damages or sums due, with interest thereon at the Past Due Rate, or for injunctive relief, or both, and for reimbursement of all attorneys' fees incurred in connection therewith, which action may be maintained by the Board or the Manager in the name of the Master Association on behalf of all the Owners or, in a prosper case, by an aggrieved Owner.
nofficial Section 3.5 Parking.
(a) Residential Parking. All Residential Parking Spaces shall be subject to the procedures and regulations adopted from time to time by the Master Association and shall be used exclusively for automobile parking purposes and those uses appurtenant to parking purposes by the Residential Unit Owner, its tenants and their guests, invitees, employees, and other Occupants.
(b) Retail Parking. All Retail Parking Spaces shall be subject to the procedures and regulations adopted from time to time by the Master Association and shall be used exclusively for automobile parking purposes and those uses appurtenant to parking purposes by the Retail Unit Owner, its tenants and their guests, invitees, employees, and other Occupants.
(c) Office Parking. All Office Parking Spaces shall be subject to the procedures and regulations adopted from time to time by the Master Association and shall be used exclusively for automobile parking purposes and those uses appurtenant to parking purposes by the Office Unit Owner, its tenants and their guests, invitees, employees, and other Occupants.
(d) Hotel Parking. All Hotel Parking Spaces shall be subject to the
es appurtenant to parking purposes by the Office Unit Owner, its tenants and their guests, invitees, employees, and other Occupants.
(d) Hotel Parking. All Hotel Parking Spaces shall be subject to the procedures and regulations adopted from time to time by the Master Association and shall be used exclusively for automobile parking purposes and those uses appurtenant to parking purposes by the Hotel Unit Owner, its guests, invitees, employees, and other Occupants.
25 02948-JDB\1012050 Harbor Decl-2 #2064665v1 Garage Parking. All parking in, and entrance to, the Garage shall be subject to the procedures and regulations adopted from time to time by the Master Association.
Section 3.6 Easements. Each Owner shall, by virtue of this Master Declaration, accept the deed to their Unit subject to the Easements reserved and granted in this Section 3.6, which shall be non-exclusive covenants running with the Land, except where otherwise indicated, and shall be for the benefit and in favor of, as applicable, the Unit Owners, the Sub-Unit Owners, Declarant, the Master Association, the Occupants and their guests, licensees, and invitees for all proper purposes.
A.
Access, Support, Utility, and Common Elements Easements.
Declarant hereby grants and reserves the Access Easement, the Support Easement, and the Utility Easement for the benefit of all Owners, all Sub-Unit Owners, the Master Association and their agents, employees, and representatives, including the Manager and the Manager's agents and employees as the case may be. Declarant hereby grants and reserves the Common Elements Easement for the benefit of each Owner and each Sub-Unit Owner and declares that by virtue of this Master Declaration, the Common Elements shall be subject to the Common Elements
s the Common Elements Easement for the benefit of each Owner and each Sub-Unit Owner and declares that by virtue of this Master Declaration, the Common Elements shall be subject to the Common Elements Easement. Declarant may record an easement agreement or easement relocation agreement in the Official Public Records of the County, specifically locating or relocating any Utility Easement subsequent to the recordation of this Master Declaration, and each Unit Owner and Sub-Unit Owner, by acceptance of the deed to a Unit or a Sub-Unit, hereby grants Declarant an irrevocable power of attorney, coupled with an interest, with full power and authority to locate or relocate any Utility Easement.
B. Additional Access Easements. Declarant (during the Declarant Control Period) may grant easements over and across the Common Elements to the extent necessary or required to provide vehicular and pedestrian access from property located adjacent to the Condominium and owned by Declarant or an affiliate of Declarant to the parking areas of the Condominium. Declarant (during the Declarant Control Period) may further grant an easement for the benefit of such adjacent property owned by Declarant or an affiliate of the Declarant to permit owners of all or a portion of such adjacent property and their guests to utilize the parking areas of the Condominium; provided, however, that in no event may the grant of such easement unreasonably interfere with the use of such parking areas by any Owner having a right hereunder or under any other written agreement to use them.
C.
Additional Utilities Easements. Declarant hereby reserves the right to grant easements for utilities over any and all of the Common Elements for its own
der any other written agreement to use them.
C.
Additional Utilities Easements. Declarant hereby reserves the right to grant easements for utilities over any and all of the Common Elements for its own benefit, for the benefit of the Master Association, or for the benefit of public or private companies furnishing utility service to all or a part of the Condominium.
Utilities may include, but not be limited to, water, storm sewer, sanitary sewer, trash removal, electricity, gas, telephone, cable television, and security.
26 nofficial 02948-JDB\1012050 Harbor Decl-2 #2064665v1 D. Signage Rights. Declarant hereby grants and reserves the right to affix signage to the exterior surface of each Building (including the Garage), for the benefit of Declarant and its successors and assigns. Declarant shall have the unrestricted right to lease or license the outside walls of the Buildings for the purpose specified above and to receive all income and revenues in connection therewith. All signage erected on the Property shall be in compliance with any Legal Requirements and shall be further subject to the architectural control of the Master Association as described in Section 3.2 of this Master Declaration. The Master Association may remove fixtures and/or improvements, as necessary, to maintain, repair, or replace the outside walls or may require Declarant or an Owner to do so, as applicable. The Master Association does not insure fixtures or improvements installed pursuant to the signage rights herein granted and is not liable to Declarant or any other person for any loss or damage from any cause to the fixtures or improvements installed pursuant to the signage rights. Declarant's signage rights shall be assignable, in whole or in
arant or any other person for any loss or damage from any cause to the fixtures or improvements installed pursuant to the signage rights. Declarant's signage rights shall be assignable, in whole or in part, by Declarant and shall inure to the benefit of Declarant and its successors and assigns. This Section 3.6D may not be amended without the written consent of Declarant or its assignee.
E.
Roof Easement. Declarant hereby reserves the Roof Easement for Declarant's benefit and, to the extent determined by Declarant, for the benefit of the Master Association for the placement, use, and maintenance of air conditioning condenser units and for satellite systems and for an unmanned site for electronic, telecommunications, transmitting, and similar equipment. In connection therewith, Declarant shall have the unrestricted right to lease or license the Roof Easement area or any part thereof for the purposes specified above and any gross income received in connection therewith shall be payable to Declarant. Declarant or its assignee shall have the right to move or remove fixtures and/or improvements, as necessary, for the maintenance, repair, replacement, leasing, or licensing of the roof or any part thereof.
Declarant shall not be required to insure fixtures or improvements installed pursuant to the Roof Easement and is not liable to the Master Association, any Owner, or any other person for any loss or damage from any cause to the fixtures or improvements in the Roof Easement area.
F.
Easement to Inspect and Right to Correct. For a period of ten (10) years after the date on which this Master Declaration has been recorded in the Official Public Records of the County, Declarant reserves for self and for
and Right to Correct. For a period of ten (10) years after the date on which this Master Declaration has been recorded in the Official Public Records of the County, Declarant reserves for self and for Declarant's architect, engineer, other design professionals, builders, general, contractors and other contractors the right, but not the duty, to inspect, monitor, test, redesign and correct any structure, Building, Improvement, or condition that may exist on any portion of the Condominium, including the Common Elements and Units, and a perpetual nonexclusive easement of access throughout the Condominium to the extent reasonably necessary to exercise this right. Declarant or the party accessing the Condominium will promptly repair, at its sole expense, any damage resulting from the exercise of this right. This Section may not be construed to create 27 nofficial a duty for Declarant or the Master Association, and may not be amended without Declarant's written consent. In support of this reservation, each Owner and Sub-Unit Owner, by accepting an interest in or title to a Unit or Sub-Unit, hereby grants to Declarant an easement of access and entry over, across, under, and through the Condominium, including without limitation, all Common Elements, the Owner's Unit, the Sub-Unit Owner's Sub-Unit, and all Improvements thereon for the purposes contained in this Section 3.6.
Section 3.7 Encroachments. If, as a result of the original construction, reconstruction, repair, shifting, settlement, or other circumstance, any portion of the Common Elements encroaches upon an Owner's Unit, an irrevocable and perpetual easement for such encroachment and for the
uction, repair, shifting, settlement, or other circumstance, any portion of the Common Elements encroaches upon an Owner's Unit, an irrevocable and perpetual easement for such encroachment and for the maintenance of the same is hereby granted and conveyed to the Master Association by each Owner at the time each Owner's Unit is conveyed to the Owner. If as a result of the original construction, reconstruction, repair, shifting, settlement, or other circumstance, any portion of an Owner's Unit encroaches upon the Common Elements, or upon any adjoining Owner's Unit, an irrevocable and perpetual easement for such encroachment and for the maintenance of the same is hereby granted to the Owner of such Unit. Such encroachments and easements shall not be considered or determined to be encumbrances either upon a Unit or upon the Common Elements.
Section 4.1 ARTICLE IV Matters Regarding the Master Association General. The Master Association has been or will be incorporated as a nonprofit corporation under the Texas Nonprofit Corporation Act. In addition to the powers conferred on the Master Association under the Governing Documents, the Master Association may take all actions authorized by Section 82.102 of the Act. In addition to all other rights the Master Association may have, the Master Association, acting through the Board, shall have the right and authority to: A. enter into Units for maintenance, emergency, security or safety, purposes. Except in an emergency, entry shall be only during reasonable hours and after reasonable notice to an Owner of the Unit. No party exercising the rights herein granted shall be liable for trespass, damages, or in any other manner by virtue of exercising such rights; B.
C.
Properties.
enforce the Governing Documents; and
No party exercising the rights herein granted shall be liable for trespass, damages, or in any other manner by virtue of exercising such rights; B.
C.
Properties.
enforce the Governing Documents; and control, manage, operate, maintain, improve, and replace the Common Any and all actions taken by the Master Association pursuant to the Governing Documents are binding on all Owners.
nofficial 28 Section 4.2 Members. An Owner of a Unit, upon becoming an Owner, shall be a member ("Member") of the Master Association and shall remain a Member for the period of such Owner's ownership; provided, however, if a Unit is made the subject of a Sub-Declaration, then the term "Member," for that Unit only, shall thereafter refer to the Sub-Association formed to operate and manage the Unit on behalf of the Sub-Unit Owners created by such Sub-Declaration. The terms "Member," as used herein, shall under no circumstances refer to a Sub-Unit Owner. The Master Association shall be managed by the Board, duly appointed or elected, pursuant to the terms and conditions of the Bylaws. Each Member shall be entitled to cast a number of votes equal to such Owner's Allocated Interest. If a Sub-Association becomes a Member, it shall be entitled to the same number of votes as the Owner of such Unit had immediately prior to the creation of the SubCondominium. Any matter described herein as requiring approval by a stated percentage or a majority of the Owners shall mean a stated percentage or a majority of the Allocated Interests. In addition, the Master Association may enter into a management agreement upon the terms and conditions consistent with this Master Declaration.
Section 4.3 Board of Directors. The Board of Directors shall be initially established by
on may enter into a management agreement upon the terms and conditions consistent with this Master Declaration.
Section 4.3 Board of Directors. The Board of Directors shall be initially established by Declarant as set forth in the Bylaws and shall consist of four (4) individuals who need not be Owners. One member of the Board of Directors shall be selected by the Owner of the Residential Unit, one member shall be selected by the Owner of the Retail Unit, one member shall be selected by the Owner of the Office Unit, and one member shall be selected by the Owner of the Hotel Unit.
Section 4.4 Right of Action by Owners. Owners and any Sub-Association, if, as, and when created, shall have the right to maintain actions against the Master Association for its failure to comply with the provisions hereof or to perform its duties and responsibilities hereunder.
Section 4.5 Declarant Control. Section 4.2 hereof notwithstanding, and for the benefit and protection of the Owners and any First Mortgagees for the purpose of ensuring a complete and orderly buildout as well as a timely sellout of the Condominium, Declarant will retain control of and over the Master Association. During the Declarant Control Period, Declarant shall have the power to appoint and remove officers of the Master Association and members of the Board. It is expressly understood, Declarant will not use its control for any advantage over the Owners by way of retention of any residual rights or interests in the Master Association or through the creation of any management agreement with a term longer than one (1) year, upon relinquishment of Declarant control, without the approval of a Majority of Unit Owners. At the end of the Declarant Control
ation of any management agreement with a term longer than one (1) year, upon relinquishment of Declarant control, without the approval of a Majority of Unit Owners. At the end of the Declarant Control Period, Declarant, through the Board, shall call the first annual meeting of the Master Association Section 4.6 Temporary Managing Agent. During the Declarant Control Period, Declarant may employ or designate a temporary manager or managing agent who shall have and possess all of the rights, powers, authority, functions and duties as may be specified in the contract of employment or as may be delegated by Declarant. Declarant may pay such temporary manager or managing agent such compensation as it may deem reasonable for the services to be rendered, which compensation shall constitute a part of the Common Expenses and shall be paid out of the Master Association budget.
29 02948-JDB1012050 Harbor Decl-2 #2064665v1 official Section 4.7 Indemnification. The Master Association shall indemnify every officer, director, and committee member of the Master Association ("Indemnified Party") against expenses, including attorneys' fees, reasonably incurred by or imposed on an Indemnified Party in connection with any threatened or pending action, suit, or proceeding to which an Indemnified Party is a party or respondent by reason of being or having been in such position. An Indemnified Party shall not be liable for a mistake of judgment. An Indemnified Party is liable for his or her willful misfeasance, malfeasance, misconduct, or bad faith. This right to indemnification does not exclude any other rights to which a present or former Indemnified Party may be entitled.
Section 5.1 A.
ARTICLE V Maintenance, Alterations, Insurance, Taxes, and Utilities Maintenance.
cation does not exclude any other rights to which a present or former Indemnified Party may be entitled.
Section 5.1 A.
ARTICLE V Maintenance, Alterations, Insurance, Taxes, and Utilities Maintenance.
Except as otherwise provided herein or in the Allocation Document, each Owner shall be responsible for and shall maintain and repair, at the Owner's sole cost and expense, the Owner's Unit and the Limited Common Elements appurtenant thereto in accordance with the Maintenance Standard, in good condition and repair, including, without limitation, all Systems that serve only or are a part of the Owner's Unit, fixtures, and appliances contained therein, and all interior Unit doors and interior windows, and the replacement thereof (including, but not limited to, hardware and glass). No Owner shall be required to directly pay the cost and expense of structural repairs to the Owner's Unit or to the Common Elements unless necessitated by the willful or grossly negligent misuse thereof by the Owner, the Occupants, or the invitees of such Owner's Unit, in which event such costs and expenses shall constitute the sole obligation of the Owner, whose Occupants and/or invitees were guilty of such willful or negligent misuse. Any maintenance and repair work to an Owner's Unit done by or on behalf of the Owner shall be done in a good and workmanlike manner using materials of equal or better quality than the materials removed, and shall be done in such a manner as not to impair the structural soundness or integrity or to alter the exterior appearance of any Building or Owner's Unit. In the event an Owner fails to discharge the Owner's maintenance obligations hereunder, the Master Association shall be entitled (but not obligated) to cause such
ance of any Building or Owner's Unit. In the event an Owner fails to discharge the Owner's maintenance obligations hereunder, the Master Association shall be entitled (but not obligated) to cause such work to be done following written notice to the Owner and a ten (10) day opportunity to cure such default, and the cost and expense thereof shall be and constitute alien upon such Owner's Unit, which lien may be enforced in the same method as is provided for the enforcement of liens for Assessments pursuant to the provisions of Section 6.6 of this Master Declaration. Damage to the interior of any Unit resulting from such maintenance, repair, and replacement activities by the Master Association, whether by reason of an emergency or otherwise, shall constitute a Common Expense and be payable by the Master Association; provided, however, that if such maintenance, repairs, or replacements are the result of the misuse or gross negligence of an Owner, Occupants of such Owner's Unit, or its guests or invitees, then such Owner shall be responsible and liable for all such damage.
30 nofficial B. Except as otherwise provided herein or in the Allocation Document, all General Common Elements shall be maintained by the Master Association, in accordance with the Maintenance Standard, in good condition and repair, the cost and expense of which shall constitute a Common Expense and be payable by the Master Association. All Common Expenses shall be assessed against the Owners in accordance with their Allocated Interests, save and except those expenses as may be set forth herein or in the Allocation Document (hereinafter defined) for which a different allocation is provided. The Master Association shall establish and maintain
d except those expenses as may be set forth herein or in the Allocation Document (hereinafter defined) for which a different allocation is provided. The Master Association shall establish and maintain an adequate reserve fund for Common Expenses, to be funded by Common Assessments rather than by Special Assessments.
C.
Declarant has determined or may determine that certain maintenance functions and capital expenditures shall be the responsibility of a designated Owner or Owners and that the expenses associated therewith shall be allocated in a manner other than by the Allocated Interests. Declarant may allocate such expenses and designate the responsible Owner or Owners in the Allocation Document (the Allocation Document"). A copy of the Allocation Document shall be maintained in the records of the Master Association and shall be binding upon all Owners, Sub-Unit Owners, Occupants, First Mortgagees, and any other party at any time having any interest in the Condominium. The Owner identified on the Allocation Document as responsible for the particular maintenance function shall have the responsibility for performing such maintenance function in a first class manner and in accordance with the Maintenance Standard and shall bill and collect from the other Owner, if any, its applicable cost percentage reflected on the Allocation Document on a monthly basis.
The Allocation Document may be amended or modified only upon the affirmative vote or consent of Owners representing an aggregate ownership interest of at least sixty-seven percent (67%) of the Allocated Interests or, during the Declarant Control Period, by Declarant. Any Owner may request that the allocations specified in the Allocation Document be reviewed on an annual basis in light of the prior year's
rests or, during the Declarant Control Period, by Declarant. Any Owner may request that the allocations specified in the Allocation Document be reviewed on an annual basis in light of the prior year's budgeting and expenses and the Owners shall in good faith determine whether adjustment to the allocations are appropriate. Prior to the commencement of each fiscal year of the Master Association, the Owner(s) responsible for performance of maintenance functions as indicated on the Allocation Document shall prepare and deliver to the other Owners a budget setting forth, for each of the line items on the Allocation Document (1) the total maintenance expenses anticipated to be incurred for the ensuing year, and (2) each Owner's anticipated monthly share thereof.
Regularly scheduled maintenance expenses may not be incurred in excess of budgeted amounts without the consent of all of the Owners, but the obligation of the Owners to pay for emergency or reasonably unforeseeable repairs shall not be affected by the budget. If the proposed budget for a fiscal year increases more than five percent (5%) above the budget for the preceding fiscal year (by reason of a new line item expense or a change in the nature of the function or the scope of the services to be provided as opposed to an increase of third party rates that are not controllable, such as costs for insurance and utilities) or an individual line item expense increases by more than ten percent (10%) above the prior budgeted amount, such budget or 31 nofficial increased line item (as applicable) must be approved by Owner's representing an aggregate ownership interest of at least sixty-seven percent (67%) of the Allocated
0 Harbor Decl-2 #2064665v1 nofficial increased line item (as applicable) must be approved by Owner's representing an aggregate ownership interest of at least sixty-seven percent (67%) of the Allocated Interests. The failure of the Owner responsible for such maintenance function to deliver the budget as provided herein shall in no event excuse or relieve any other Owner from the payment of the listed items after such expenses are incurred, but shall excuse the other Owners from prepayment of any of the listed items before expenses are actually incurred.
D. If the Owner responsible for maintenance functions shall fail to perform its obligations under Section 5.1(C) above, the Master Association shall have the right to complete the work and assess the costs against the Owner in accordance with the allocations specified on the Allocation Document. Before the Master Association exercises such right, it shall give written notice to the Owner and such Owners' First Mortgagee that shall include the following items: (1) a date the notice is mailed or prepared; (2) a description of the maintenance which the Owner failed to perform; (3) a description of the action required to correct the failure; (4) a statement that the Owner may request a hearing before the Board of Directors to contest the notice and/or the need to perform the maintenance to be held not later than the tenth (10th) day after the date of the written notice; and (5) that at any time following such ten (10) day notice and cure period, the Master Association will act to perform the maintenance should the Owner not have undertaken the maintenance or requested a hearing within the required time frame. Costs and expenses incurred by the Master Association in accordance with this paragraph shall constitute a lien
t have undertaken the maintenance or requested a hearing within the required time frame. Costs and expenses incurred by the Master Association in accordance with this paragraph shall constitute a lien on such Owner's Unit which may be enforced in the same method provided for the enforcement of liens for Assessments pursuant to Section 6.6. If any Owner shall fail to reimburse the Owner performing the maintenance described on the Allocation Document, the Master Association shall make a Individual Assessment against the delinquent Owner for such purposes to be paid over to the Owner performing the maintenance. An Owner's failure to pay any such Individual Assessment shall be handled in the same manner as other delinquent Assessments as provided in Section 6.6.
E. The Master Association shall not be liable for injury or damage to any person or property caused by the elements or by the Owner of any Unit, or any other Person, or resulting from any utility, rain, snow, or ice which may leak or flow from any portion of the Common Elements or from any pipe, drain, conduit, appliance, or equipment which the Master Association is responsible to maintain hereunder. The Master Association shall not be liable to any Owner or Sub-Unit Owner or any Occupant of any Unit or Sub-Unit or such Owner's or Sub-Unit's tenant, guest, or family for loss or damage, by theft or otherwise, of any property which may be stored in or upon any of the Common Elements. The Master Association shall not be liable to any Owner, Sub-Unit Owner or Occupant for any damage or injury caused in whole or in part by the Master Association's failure to discharge its responsibilities under this Section where such damage or injury is not a foreseeable, natural result of
damage or injury caused in whole or in part by the Master Association's failure to discharge its responsibilities under this Section where such damage or injury is not a foreseeable, natural result of the Master Association's failure to discharge its responsibilities.
32 02948-JDB\1012050 Harbor Decl-2 #2064665v1 nofficial Section 5.2 Disputes. Any Dispute arising among Owners as to the proper party to bear a maintenance cost or expense shall be resolved in accordance with Article IX herein.
Section 5.3 A.
Alterations.
No Owner shall be entitled to alter, add to, or improve the General Common Elements. In addition, except as herein expressly provided, no Owner shall be entitled to alter, add to, or improve the Owner's Unit, or the Limited Common Elements appurtenant thereto, in a manner as will or might reasonably be expected to affect (a) the structural soundness or integrity of any Building or the exterior appearance of any of the Improvements; (b) any System that services more than one Owner's Unit; or (c) any warranty in favor of the Master Association, without the prior written consent of the Master Association. In addition, no Owner shall be entitled to make any alteration, addition, or improvement to a Limited Common Elements appurtenant to more than the Owner's Unit unless the prior written approval of all Owners having an interest therein is obtained. Any alteration, addition, and improvement made pursuant to this Section shall be made at the individual cost and expense of the Owner of the Unit or Limited Common Element so altered, added to, or improved and shall be made in compliance with this Master Declaration and all Regulations established by the Master Association.
B. Limits on Liability. Neither Declarant, nor the Board, nor their
or improved and shall be made in compliance with this Master Declaration and all Regulations established by the Master Association.
B. Limits on Liability. Neither Declarant, nor the Board, nor their directors, officers, committee members, employees or agents will have any liability for decisions made in good faith, and which are not arbitrary or capricious. Neither Declarant, nor the Board, nor their directors, officers, committee members, employees or agents are responsible for (i) errors in or omissions from the plans and specifications submitted to the Board; (ii) supervising construction for the Owner's compliance with approved plans and specifications; or (iii) the compliance of the Owner's plans and specifications with governmental codes and ordinances, or with state and federal laws. Approval of a modification or improvement may not be deemed to constitute a waiver of the right to withhold approval of similar proposals, plans or specifications that are subsequently submitted.
Section 5.4 Mechanic's Liens; Indemnification. No labor or service performed or material furnished and incorporated into an Owner's Unit shall be the basis for the filing of a mechanic's lien against the Unit of any other Owner not expressly consenting, in writing to or requesting the same, or against the Common Elements. Each Owner shall indemnify and hold harmless each of the other Owners and the Master Association from and against all liabilities and obligations arising from the claim of any mechanic's lien for labor, services, and materials against the Units of such other Owners or the Common Elements. All contracts for labor, services, and materials with respect to any of the Units shall be in compliance with the provisions hereof.
nofficial 33
the Units of such other Owners or the Common Elements. All contracts for labor, services, and materials with respect to any of the Units shall be in compliance with the provisions hereof.
nofficial 33 02948-JDB\1012050 Harbor Decl-2 #2064665v1 Section 5.5 (a) Insurance -General.
Commencing upon the first conveyance of any Unit to an Owner other than Declarant, the Master Association shall obtain and maintain, as a Common Expense, insurance coverage required pursuant to this Master Declaration. In addition, the Master Association shall carry such other or additional insurance in such amounts, and against such risks, as all of the Owners shall reasonably deem necessary with respect to the Common Elements or operation of the Master Association. Unless otherwise indicated in the Allocation Document, the premiums for all insurance coverages maintained by the Master Association pursuant to this Section shall constitute a Common Expense and be payable by the Master Association.
(b) Neither the Board of Directors, any Manager, Declarant, nor any Owner will be liable for failure to obtain any insurance coverage required by this Master Declaration or for any loss or damage resulting from such failure, if such failure is due to the general unavailability of such coverage from reputable insurance companies, or if such coverage is not available at a commercially reasonable cost.
(c) provide that: Each policy of insurance maintained by the Master Association shall each Owner shall be named as an insured and the Master Association shall be named as loss payee; (ii) each Owner is an insured person under such policies with respect to liability arising out of the Owner's ownership of an undivided interest in the Common Elements or membership in the Master Association; (iii)
r is an insured person under such policies with respect to liability arising out of the Owner's ownership of an undivided interest in the Common Elements or membership in the Master Association; (iii) insurance trust agreements will be recognized; (iv) any right to claim (A) by way of subrogation against the Declarant, the Master Association, the Board of Directors, any Manager, the Owners, and their respective agents and employees, and (B) invalidity arising from acts of the insured is waived; (v). the coverage of the policy is not prejudiced by any act or omission of an individual Owner to the extent that such act or omission is not within the collective control of all Owners; (vi) such policy is primary insurance if at the time of a loss under the policy any Owner has other insurance covering the same property covered by the policy; nofficial 34 (vii) no action or omission by an Owner will void the policy or be a condition to recovery under the policy; (viii) such policy may not be cancelled, may not be renewed or substantially modified without at least 45 days prior written notice 15 days if due to non-payment of premium) to the Master Association, any Manager and, in the case of physical damage and fidelity insurance, to all Owners and to all First Mortgagees; and (ix) an agreement that if cancellation is due to nonpayment of premiums, the insurer will so specify in the notice given in (viii) above and will reinstate the policy upon payment of the premiums by the Master Association.
(d) The Manager shall be reflected as an additional insured on any commercial general liability insurance policy carried by the Master Association.
(e) The Declarant, so long as Declarant shall own any Unit, shall be
shall be reflected as an additional insured on any commercial general liability insurance policy carried by the Master Association.
(e) The Declarant, so long as Declarant shall own any Unit, shall be protected by all such policies as an Owner.
(f) The Board of Directors shall have the express authority, on behalf of the Master Association, to name as insured an authorized representative, including any trustee (or successor thereto) with whom the Master Association has entered into any insurance trust agreement, which authorized representative shall have exclusive authority to negotiate losses under any policy providing the property or liability insurance required to be provided herein.
(g) By acceptance of a deed to a Unit, each Owner shall be deemed to have irrevocably appointed the Master Association (which appointment shall be deemed a power coupled with an interest), together with any insurance trustee, successor trustee, or authorized representative designated by the Master Association as such Owner's attorney-in-fact for the purpose of purchasing and maintaining the insurance required hereunder as well as for submission of, and adjustment of any claim for loss, the collection and appropriate disposition of the proceeds thereof, the negotiation of losses and execution of releases of liability, the execution of all documents, and the performance of all other acts necessary to accomplish such purpose. The Master Association or such trustee, successor trustee, or authorized representative must receive, hold, or otherwise properly dispose of any proceeds of insurance in trust for the Owners and the First Mortgagees, as their interests may appear, based on the fair market value of the interests damaged or destroyed.
nofficial 35
dispose of any proceeds of insurance in trust for the Owners and the First Mortgagees, as their interests may appear, based on the fair market value of the interests damaged or destroyed.
nofficial 35 02948-JDB\1012050 Harbor Decl-2 #2064665v1 (h) Any proceeds paid under such policy shall be disbursed first for the repair or restoration of any damaged Common Elements and Units, and no Owner or First Mortgagee or other lienholder shall receive payment of any portion of such proceeds unless a surplus remains after the Condominium has either been completely restored or the Condominium has been terminated.
(i) If an Owner (or its First Mortgagee) requires insurance coverages not initially provided in the master insurance policy obtained by the Master Association or in amounts in excess of amount specified in such master insurance policy, the Master Association shall obtain such additional coverages upon the Owner's written request, with the additional costs to be paid solely by such Owner.
Section 5.6 Insurance Providers. All insurance policies maintained by the Master Association shall be in such form and shall be issued by such responsible insurance companies licensed to do business in the State of Texas as are approved by Owners representing one hundred percent (100%) of the Allocated Interests.
Section 5.7 Physical Damage Insurance.
The Master Association shall obtain and maintain a policy of insurance (an "All Risk Policy") against fire and such other hazards, within the meaning of "all risk," insuring the Improvements and naming each Owner as an insured and the Master Association as loss payee and as trustee for the use and benefit of all Owners and their First Mortgagees as their interests may appear subject,
ents and naming each Owner as an insured and the Master Association as loss payee and as trustee for the use and benefit of all Owners and their First Mortgagees as their interests may appear subject, however, to loss payment and adjustment provisions in favor of the Board of Directors, in an amount equal to one hundred percent (100%) of the then current replacement cost of the Improvements, exclusive of land, excavations, foundations, and other items usually excluded from such coverage, such amount to be redetermined periodically by the Board of Directors with the assistance of the insurance company affording such coverage. Any deductible shall not exceed a commercially reasonable percentage of the replacement cost. A stipulated value on agreed amount endorsement deleting the co-insurance provision of the policy shall be provided with such insurance. If not otherwise included within the "all risks" coverage specified above, then the Master Association shall carry or cause to be carried, by endorsement to such All Risks Policy, coverage against damage due to water and sprinkler leakage, flood, hail, and collapse and shall be written with limits of coverage typically required with respect to facilities similar to the Condominium.
The full replacement value coverage shall include the costs of debris removal and value of grading, paving, landscaping, architects, and development fees.
nofficial 36 02948-JDB\1012050 Harbor Decl-2 #2064665v1 Each All Risk Policy shall also provide (unless otherwise provided): (b) (i) A waiver of any right of the insurer to repair, rebuild, or replace any damage or destruction if a decision is made pursuant to this Declaration not to do so.
(ii) The following endorsements (or equivalent): (A) "non
right of the insurer to repair, rebuild, or replace any damage or destruction if a decision is made pursuant to this Declaration not to do so.
(ii) The following endorsements (or equivalent): (A) "non control," (B) "contingent liability from operation of building laws," "demolition cost," and "increased cost of construction"; (C) "agreed amount" or its equivalent and "inflation guard," if available; and (D) a "severability of interest" endorsement which shall preclude the insurer from denying liability to the Master Association or to an Owner because of the acts of any of the foregoing.
(iii) That any "no other insurance" clause expressly excludes individual Owners', individual Sub-Unit Owners', or lessees' policies from its operation so that the physical damage policy purchased by the Master Association shall be deemed primary coverage and any individual Owners', individual Sub-Unit Owners', or lessees' policies shall be deemed excess coverage, and in no event shall the insurance coverage obtained and maintained by the Master Association provide for or be brought into contribution with insurance purchased by individual Owners, individual Sub-Unit Owners, or their First Mortgagees, unless otherwise required by law.
(iv) The right of subrogation against the Master Association and Owners shall be waived.
(c) A duplicate original of the policy of physical damage insurance, all renewals thereof, and any sub-policies or certificates and endorsements issued thereunder, together with proof of payment of premium, shall be delivered by the insurer to any First Mortgagee so requesting at least 10 days prior to expiration of the then current policy. All First Mortgagees shall be notified of any event giving rise
shall be delivered by the insurer to any First Mortgagee so requesting at least 10 days prior to expiration of the then current policy. All First Mortgagees shall be notified of any event giving rise to a claim under such policy in excess of $10,000.00 (in the case of damage to the Unit covered by such First Mortgagee's lien or the Common Elements).
(d) The Master Association shall not obtain any policy of insurance where (i) under the terms of the carrier's charter, bylaws, or policy, contributions of assessments may be made against the Owner or First Mortgagee or become a hen against the Condominium; or (ii) by the terms of the carrier's charter, bylaws, or policy, loss payments are contingent upon action by the carrier's board of directors, policyholders, or members; or (iii) the policy includes any limiting clauses (other than insurance conditions) which could prevent the Master Association, Owners, or First Mortgagees from collecting insurance proceeds.
37 nofficial (e) The cost of the physical damage insurance required to be carried hereunder by the Master Association shall be allocated among the Owners based on the Allocated Interests unless the Unit Owners agree on a different allocation.
Section 5.8 Liability Insurance. The Master Association shall obtain and maintain cominercial general public liability and property damage insurance in such limits as the Board of Directors may from time to time determine (but not less than $2,000,000.00 for bodily injury or property damage for any single occurrence), insuring the Master Association, each member of the Board of Directors, each Manager, each Owner, and each First Mortgagee against any liability to the
y or property damage for any single occurrence), insuring the Master Association, each member of the Board of Directors, each Manager, each Owner, and each First Mortgagee against any liability to the public or the Owners (and their invitees, agents, and employees) arising out of, or incident to the ownership or use of the Common Elements, including, to the extent applicable, host liquor liability insurance, employer's liability insurance, comprehensive automobile liability insurance, all-written contractual liability insurance, garage keeper's liability, and bailee's liability. Such insurance shall be issued on a comprehensive liability basis and shall contain: (i) a cross-liability endorsement under which the rights of a named insured under the policy shall not be prejudiced with respect to his action against another named insured, and (ii) a "severability of interest" endorsement which shall preclude the insurer from denying liability to the Master Association or to an Owner because of negligent acts of the Master Association or of another Owner. The Board of Directors shall review such limits periodically. "Umbrella" liability insurance in excess of the primary limits may also be obtained. The obtaining of liability insurance shall not constitute a waiver of any defense by any person.
Section 5.9 Other Insurance. The Master Association shall obtain and maintain: (a) Fidelity coverage to protect against dishonest acts on the part of officers, directors, and employees of the Master Association and all others who handle, or are responsible for handling, funds of the Master Association, including any Manager and its employees. Such fidelity bonds shall: (i) name the Master Association as an obligee; (ii) be written in an amount to cover the projected
funds of the Master Association, including any Manager and its employees. Such fidelity bonds shall: (i) name the Master Association as an obligee; (ii) be written in an amount to cover the projected maximum funds that will be in the custody of the Master Association or any Manager at any time, but need not be for more than three (3) months' aggregate Assessments on all Units; and (iii) contain waivers of any defense based upon the exclusion of persons who serve without compensation from any definition of "employee" or similar expression; (b) Workmen's compensation insurance if and to the extent necessary to meet the Legal Requirements and employers liability insurance with minimum limits of $1,000,000.00 and which, if carried, shall name the Manager as an additional insured; (c) Boiler and Machinery Insurance with limits as from time to time are customary for like property of the same type as the Property and appropriate in the light of the cost of repairing potential damage; 38 nofficial (d) Management liability policy covering the officers and directors of Master Association for liability for wrongful acts with minimum limits of $1,000,000.00, if available at commercially reasonable rates as determined by the Board of Directors; (e) Personal property insurance covering the personal property owned by the Master Association, including, but not limited to, the records, furniture, fixtures, equipment, and supplies of the Master Association; and (f) Such other insurance (or additional coverage) as any First Mortgagee shall require (at the expense of the Owner incurring such First Lien Indebtedness).
Section 5.10 Separate Insurance. Each Owner shall have the right and responsibility, at
rage) as any First Mortgagee shall require (at the expense of the Owner incurring such First Lien Indebtedness).
Section 5.10 Separate Insurance. Each Owner shall have the right and responsibility, at its own expense, to obtain personal property insurance on the contents of such Owner's Unit (specifically including glass and windows appurtenant to the Unit) and such Owner's additions and improvements thereto, and such Owner's decorations, furnishings, and personal property therein, and to obtain insurance for such other risks as it may desire (including an "All Risk Policy" against the contents of its Unit, liability insurance, business interruption, and workmen's compensation insurance); provided, however, that no Owner shall be entitled to exercise its right to acquire or maintain such insurance coverage so as to decrease the amount which the Master Association may realize under any insurance policy maintained by the Master Association or to cause any insurance coverage maintained by the Master Association to be brought into contribution with insurance coverage obtained by an Owner. Each Owner shall have the right and responsibility, at its own expense, to obtain such liability coverage as it shall deem prudent. All such policies shall contain waivers of subrogation as against other Owners, the Master Association, the Board of Directors, the Declarant, each Manager, and their respective agents and employees. No Owner shall obtain separate insurance policies in conflict with this Section 5.10.
Section 5.11 Taxes. The Master Association shall give written notice to the appropriate taxing authorities of the creation of the Condominium established hereby, and each Unit shall be
s Section 5.10.
Section 5.11 Taxes. The Master Association shall give written notice to the appropriate taxing authorities of the creation of the Condominium established hereby, and each Unit shall be subject to separate assessment and taxation. Each Owner shall be responsible for, and shall pay when due, all taxes, assessments, and other governmental impositions lawfully levied on assessed with respect to such Owner's Unit. Any taxes, assessments, or other governmental impositions lawfully levied or assessed with respect to the Property not separately billed to the Owners shall constitute a Common Expense and be payable by the Master Association.
Section 5.12 Utilities. Each Owner shall be responsible for, and shall pay, all gas, electricity, and water charges relating to such services used or consumed at or with respect to the occupancy of the Owner's Unit, to the extent such charges are separately metered by the respective utility companies. Any utility charges not so separately metered, and charges relating to such services used in connection with the use and maintenance of the Common Elements, shall constitute a Common Expense and be payable by the Master Association.
39 official Section 6.1 A.
ARTICLE VI Assessments Common Assessments; Budget.
Common Assessments. The Master Association shall possess the right, power, authority, and obligation to establish a regular Common Assessment sufficient in the judgment of the Board of Directors to pay all Common Expenses when due. No consent or approval of the Owners shall be required for the establishment of the Common Assessments. Such Common Assessments so established shall be payable by the Owners on the first day of each calendar month,
approval of the Owners shall be required for the establishment of the Common Assessments. Such Common Assessments so established shall be payable by the Owners on the first day of each calendar month, and shall be applied to the payment of charges for which the Master Association is responsible, including, without limitation, charges relating to maintenance and repair of elements of the Property not the responsibility of the Owners; care of the Common Elements; casualty, public liability, and other insurance coverages required or permitted to be maintained by the Master Association; governmental impositions not separately levied and assessed; utilities relating to the Common Elements or not separately metered; professional services, such as management, accounting, and legal; and such other costs and expenses as may reasonably relate to the proper maintenance, care, operation, and management of the Property, and the administration of the Master Association and the Condominium, including an adequate reserve fund for the periodic maintenance, repair, and replacement of the Common Elements. Items that shall be excluded from Common Expenses are: 1.
the cost of special services, goods, and materials provided to, or specific costs incurred for the account of, or separately billed or billable to specific Owners or Sub-Unit Owners; 2. expenses not covered by insurance and directly resulting from the negligence of one or more Owners or Sub-Unit Owners, or their respective authorized representatives; and 3.
the wages and benefits of any employee who does not devote substantially all of his or her time to the Master Association or management of the Common Elements unless such wages and benefits are prorated to reflect time spent on operating and managing
t devote substantially all of his or her time to the Master Association or management of the Common Elements unless such wages and benefits are prorated to reflect time spent on operating and managing the Common Elements vis-à-vis time spent on matters unrelated to operating and managing the Common Elements.
Notwithstanding anything to the contrary contained herein, Declarant or the Board may require that the Common Assessments be paid quarter-annually, semi-annually, or annually, in advance.
nofficial 40 B. Budget. Prior to the commencement of each fiscal year of the Master Association, the Board of Directors shall prepare and deliver to each of the Owners a budget setting forth the anticipated Common Expenses for the ensuing year. Such budget shall be in sufficient detail so as to inform each Owner of the nature and extent of the Common Expenses anticipated to be incurred, and shall be accompanied by a statement setting forth each Owner's monthly share thereof and the date as of which such Common Assessment commences to be payable. No further communication shall be necessary to establish the amount of each Owner's obligation regarding the Common Assessment payable hereunder, and the failure of the Board of Director to timely deliver the budget provided for herein shall in no event excuse or relieve an Owner from the payment of the Common Assessments. Any budget prepared and delivered to the Owners as hereby contemplated may be amended as and to the extent reasonably necessary, and the amount of an Owner's Common Assessment changed to correspond therewith. If the proposed budget for a fiscal year increases more than ten percent (10%) above the budget for the preceding fiscal year
he amount of an Owner's Common Assessment changed to correspond therewith. If the proposed budget for a fiscal year increases more than ten percent (10%) above the budget for the preceding fiscal year (by reason of a new line item expense or a change in the nature of the function or the scope of services to be provided, as opposed to the increase of third party rates that are not controllable by the Master Association, such as costs for insurance and utilities) or an individual line item expense increases by more than fifteen percent (15%) above the prior budgeted amount, such budget or increased line item (as applicable) must be approved by Owners representing at least sixty-seven percent (67%) of the Allocated Interests. In addition, the initial or first year's budget must be approved by Owners representing one hundred percent (100%) of the Allocated Interests. Any funds collected by the Master Association pursuant to the budget and not expended in any fiscal year shall be applied to reduce Common Assessments otherwise payable by Owners in the next fiscal year.
Section 6.2 Special Assessments. In addition to the Common Assessments contemplated by Section 6.1, the Master Association shall possess the right, power, and authority to establish Special Assessments from time to time as may be necessary or appropriate in the judgment of the Board of Directors to pay non-recurring Common Expenses relating to the proper maintenance, care, alteration, improvement, operation, and management of the Property, and the administration of the Master Association and the Condominium. No consent or approval of the Owners shall be required for the establishment of a Special Assessment as contemplated by this Section, except for any
tion of the Master Association and the Condominium. No consent or approval of the Owners shall be required for the establishment of a Special Assessment as contemplated by this Section, except for any Special Assessment relating to the alteration or improvement of any element of the Property or an expenditure in excess of $50,000 per item or $100,000 in the aggregate in any year, which in each case must be approved by Owners representing an aggregate ownership interest of at least sixtyseven percent (67%) of the Allocated Interests.
Section 6.3 Individual Assessments. In addition to Common Assessments and Special Assessments, the Board may levy an individual Assessment ("Individual Assessment") against a Unit and its Owner. Individual Assessments may include, but are not limited to: interest, late charges, and collection costs on delinquent Assessments; reimbursement for costs incurred in bringing an Owner or such Owner's Unit into compliance with this Master Declaration and the Regulations; 41 02948-JDB\1012050 Harbor Decl-2 #2064655v1 official fines for violations of this Master Declaration and the Regulations; insurance deductibles; submetered utilities serving the Unit; reimbursement for damage or waste caused by willful or negligent acts; common expenses that benefit fewer than all of the Units, which may be assessed according to benefit received; and "pass through" expenses for services to Units provided through the Master Association and which are equitably paid by each Unit according to benefit received.
Section 6.4 Deficiency Assessments. If permitted by the terms and provisions of this Master Declaration or the Governing Documents, the Board may levy a deficiency Assessment
ding to benefit received.
Section 6.4 Deficiency Assessments. If permitted by the terms and provisions of this Master Declaration or the Governing Documents, the Board may levy a deficiency Assessment ("Deficiency Assessment") against all Units for the purpose of defraying, in whole or in part, the cost of repair or restoration to the Common Elements if insurance proceeds or condemnation awards prove insufficient.
Section 6.5 Obligation to Pay Assessments. Each Owner shall be personally obligated to pay its Allocated Interest of all Common Assessments, Special Assessments, and Deficiency Assessments duly established pursuant to this Article and Article VII. Unpaid Assessments due as of the date of the conveyance or transfer of a Unit shall not constitute a personal obligation of the new Owner; however, the former Owner shall continue to be personally liable for such unpaid Assessments. No Owner shall be entitled to exemption from liability for the Owner's obligation to pay such Assessments by waiver of the use and enjoyment of the Common Elements, by an abandonment of the Owner's Unit or by any other action whatsoever. Any Assessment not paid within fifteen (15) days of the due date shall bear interest at the Past Due Rate, and, after written notice of the delinquency and an opportunity to cure within fifteen (15) additional days after such written notice is provided to the Owner, the Assessment shall be recoverable by the Master Association, together with interest as aforesaid and all costs and expenses of collection, including reasonable attorneys' fees, by suit in a court of competent jurisdiction sitting in the County. It shall be the responsibility of the Board of Directors to collect any such delinquent Assessment, the
reasonable attorneys' fees, by suit in a court of competent jurisdiction sitting in the County. It shall be the responsibility of the Board of Directors to collect any such delinquent Assessment, the existence of which shall be made known by written notice delivered to the defaulting Owner and, where requested, the defaulting Owner's First Mortgagee.
In the event a Unit is made the subject of a Sub-Declaration, the Sub-Unit Owners will be obligated to pay Assessments levied pursuant to this Article VI in accordance with the allocation of the rights and obligations allocated to the Sub-Unit Owners under the Sub-Declaration. In the event Sub-Units are created, the term "Unit" and the term "Owner," as used in this Article VI will extend to and include each Sub-Unit and each Sub-Unit Owner. As provided in Section 2.5 hereof, the monthly Common Assessments assessed against a Unit that has been made the subject of Sub Declaration will be re-allocated to the Sub-Units created by such Sub-Declaration. Notwithstanding anything contained in this Master Declaration to the contrary, if a Unit is made the subject of a SubDeclaration, then the lien reserved herein shall attach only to the Sub-Units created by such SubDeclaration, and shall no longer attach to the entire Unit. Enforcement of such hien rights shall be against the Sub-Unit for which Assessments are delinquent, and in no event may such lien rights be enforced against the entire Unit made the subject of a Sub-Declaration if the Assessments of only one or more Sub-Units created by such Sub-Declaration are delinquent. In connection with the enforcement of the lien rights reserved hereunder, unless Declarant or the Master Association elects
f only one or more Sub-Units created by such Sub-Declaration are delinquent. In connection with the enforcement of the lien rights reserved hereunder, unless Declarant or the Master Association elects otherwise, each Sub-Association shall be licensed to collect, and shall collect, from each Sub-Unit Owner the share of the Assessments levied hereunder attributable to such Sub-Unit. If a Sub42 02948-JDB1012050 Harbor Decl-2 #2064665v1 official Association fails to timely collect any portion of the Assessments due from the Sub-Unit Owner, then after the Master Association has provided at least thirty (30) days written notice to the SubAssociation and the applicable Sub-Unit Owner, the license granted hereunder to the SubAssociation to collect Assessments may, at the election of the Master Association, be terminated, and thereafter the Master Association may enforce its lien against the applicable Sub-Unit, without the joinder or consent of the Sub-Association.
Section 6.6 Lien to Secure Payment of Assessments. Declarant hereby reserves and assigns to the Master Association a lien, pursuant to the provisions of Section 82.113 of the Act, against each Owner's Unit and Insurance Proceeds received by any Unit Owner to secure the payment of all Assessments, which lien shall be and constitute a lien and encumbrance, in favor of the Master Association, upon such Owner's Unit and any Insurance Proceeds. The liens established herein shall be prior and superior to all other liens and encumbrances subsequently created upon such Owner's Unit and Insurance Proceeds, regardless of how created, evidenced, or perfected, other than the lien securing the payment of the First Lien Indebtedness (provided such lien was recorded prior to the
s Unit and Insurance Proceeds, regardless of how created, evidenced, or perfected, other than the lien securing the payment of the First Lien Indebtedness (provided such lien was recorded prior to the date on which the Assessment became delinquent) and the liens for unpaid taxes, assessments, and other governmental impositions. The liens and encumbrances created herein may be enforced by any means available at law or in equity, including, without limitation, a non-judicial foreclosure sale of the Unit of a defaulting Owner. Any such sale (including notice thereof) shall comply with the applicable requirements, at the time of the sale, of Section 51.002 of the Texas Property Code or, if and to the extent such statute is not then in force, with the applicable requirements, at the time of the sale, of the successor statute or statutes, if any, governing sales of Texas real property under powers of sale conferred by deeds of trust or other contract liens. Each Owner, by acquisition of a Unit, and each Sub-Unit Owner, by acquisition of a Sub-Unit, grants to the Master Association a power of sale in connection with the Master Association's liens. By written resolution, the Board of Directors may appoint, from time to time, an officer, agent, trustee, or attorney of the Master Association to exercise the power of sale on behalf of the Master Association. The Master Association may bid for and purchase the Owner's Unit, as a Common Expense, at any such foreclosure sale. The foreclosure by a First Mortgagee of an Owner's Unit in order to satisfy a First Lien Indebtedness will extinguish the subordinate lien for any Assessments which became payable prior to the date of such foreclosure
y a First Mortgagee of an Owner's Unit in order to satisfy a First Lien Indebtedness will extinguish the subordinate lien for any Assessments which became payable prior to the date of such foreclosure sale, provided that in no event shall a defaulting Owner be relieved from liability incurred for past Assessments. To evidence such lien, the Master Association may, but shall not be required to, prepare written notice setting forth the amount of such unpaid indebtedness, the name of the Owner of the Unit and a description of the Unit. Such notice shall be signed by one of the members of the Board and may be recorded in the Official Public Records of the County.
Section 6.7 Commencement of Obligation to Pay Assessment. Each Owner (including Declarant) shall be obligated to commence payment of all Assessments against such Owner's Unit on the date this Master Declaration is recorded in the Official Public Records of the County. If such date is other than the first day of a month, then such Owner shall be obligated to pay only a pro rata share of the Assessment against such Owner's Unit based on the number of days during such month that the Owner will hold title to the Owner's Unit. Nothing shall prevent Declarant from collecting from the purchaser of a Unit, at closing, any expenses, such as taxes or insurance, to the extent prepaid by Declarant on behalf of the Unit being purchased.
43 02948-JDB 1012050 Harbor Decl-2 #2064665v1 official Section 6.8 Notice of Default. If the Owner of a Unit defaults in the Owner's monetary obligations to the Master Association, the Master Association may notify any holder of an indebtedness secured by a lien or encumbrance upon such Owner's Unit of the default and the Master
's monetary obligations to the Master Association, the Master Association may notify any holder of an indebtedness secured by a lien or encumbrance upon such Owner's Unit of the default and the Master Association's intent to foreclose its lien. The Master Association shall notify any holder of a recorded lien or duly perfected mechanic's lien against a Unit which has given the Master Association a written request for notification of the Owner's monetary default or the Master Association's intent to foreclose its lien.
Section 6.9 Alternative Actions. Nothing contained in this Master Declaration shall prohibit the Master Association from taking a deed in lieu of foreclosure or from filing suit to recover a money judgment for sums that may be secured by the lien.
Section 6.10 Statement of Common Expenses and Access to Records. The Master Association shall promptly provide any Owner, contract purchaser, or First Mortgagee so requesting the same, in writing, with a written statement of all unpaid Assessments due with respect to such Unit, the amount of the current Common Assessments, and the date such Common Assessments become due, which shall be conclusive upon the Master Association in favor of all Persons who request and rely thereon in good faith. Unless such request for a written statement shall be complied with by the Master Association within fifteen (15) days after receipt, all unpaid Assessments which become due prior to the date of the making of such request shall be subordinate to the lien of the Person requesting such statement. The Board of Directors may impose a reasonable charge for the preparation of such statement to the extent permitted by the Act. The Master Association shall make
the Person requesting such statement. The Board of Directors may impose a reasonable charge for the preparation of such statement to the extent permitted by the Act. The Master Association shall make available during normal business hours for inspection, upon written request by Owners, First Mortgagees, prospective purchasers, and any of their authorized agents, current copies of the books, records, and financial statements of the Master Association (including, if such is prepared, the most recent annual audited financial statement available). Any Owner or First Mortgagee may have an audited statement of the Master Association prepared at its own expense.
Section 6.11 Working Capital Contribution. Upon the transfer of a Unit (including both transfers from Declarant to the initial Owner and transfers from one Owner to a subsequent Owner), a Working Capital Contribution will be paid to the Master Association for the Master Association's working capital fund. Upon termination of the Declarant Control Period (and only at such time), the Board will be permitted to modify any Working Capital Contribution payable on the transfer of a Unit. Each Working Capital Contribution will be collected from the transferee of a Unit upon the conveyance of the Unit from an Owner (including Declarant) to another (expressly including any re conveyances of the Unit upon resale or transfer thereof). Notwithstanding the foregoing provision, the following transfers will not be subject to a Working Capital Contribution: () foreclosure of a deed of trust lien, tax lien, or the Master Association's lien for Assessments; (ii) transfer to, from, or by the Master Association; (iii) voluntary transfer by an Owner to one or more so owners, or the
d of trust lien, tax lien, or the Master Association's lien for Assessments; (ii) transfer to, from, or by the Master Association; (iii) voluntary transfer by an Owner to one or more so owners, or the Owner's spouse, child, or parent; (iv) any grantee who is the domestic partner or former spouse of the grantor; (v) any grantee that is a wholly-owned entity of the grantor; and (vi) any grantee to whom a Unit is conveyed by a will or through the law of intestacy. Contributions to the working capital fund are not advance payments of Common Assessments and are not refundable.
44 official ARTICLE VII Loss and Obsolescence Section 7.1 Loss or Damage. The following provisions shall govern in the event the Improvements, or any part thereof, are damaged or destroyed by fire or other casualty: A.
Notice to Mortgagees. Prompt written notice of any such substantial damage or destruction shall be given to all First Mortgagees.
B.
Restoration and Repair. The Master Association shall promptly proceed with the full restoration and repair of such damage or destruction unless (1) the Condominium is terminated; (2) repair or replacement would be illegal under any state or local health or safety statute or ordinance; or (3) Owners representing one hundred percent (100%) of the Allocated Interest vote not to rebuild within ninety (90) days of the date of the damage or destruction.
C.
Deficiency Assessment. The amount by which such restoration and repair costs exceed collectible insurance proceeds shall be and constitute a Deficiency Assessment payable by the Owners within thirty (30) days of the date notice of such Deficiency Assessment is delivered by the Master Association.
D. Excess Proceeds. Any excess insurance proceeds remaining after such
le by the Owners within thirty (30) days of the date notice of such Deficiency Assessment is delivered by the Master Association.
D. Excess Proceeds. Any excess insurance proceeds remaining after such restoration and repair, or any insurance or sales proceeds available absent such restoration and repair, shall be received and held in trust by the Master Association in separate accounts for each Owner according to the Allocated Interests of the Owners, and be applied, without contribution from one account to another, as follows: 1. first, to the payment of any taxes and special assessment liens or other governmental impositions in favor of any assessing entity having authority with respect to such Owner's Unit; 2.
second, to the payment of the balance of the First Nien Indebtedness of such Owner; 3.
third, to the payment of any delinquent Assessment with respect to such Owner's Unit; and 4.
the balance, if any, to such Owner or such other parties as shall be legally entitled thereto.
nofficial 45 Section 7.2 Damaged Units. The following provisions shall govern if any Unit or any part thereof is damaged or destroyed by fire or other casualty ("Damaged Unit").
A. Notice to Mortgagees. Prompt written notice of any such substantial damage or destruction shall be given to the First Mortgagee of the Damaged Unit.
B. Restoration and Repair. After the Master Association has performed any repair or restoration required pursuant to Section 7.1B hereof, the Owner of the Damaged Unit shall promptly proceed with the full restoration and repair of such damage or destruction and shall pay all costs of such restoring, repairing, replacing, or rebuilding in excess of the net proceeds of the collectible insurance proceeds
restoration and repair of such damage or destruction and shall pay all costs of such restoring, repairing, replacing, or rebuilding in excess of the net proceeds of the collectible insurance proceeds unless (1) the Condominium is terminated; (2) repair or replacement would be illegal under any state or local health or safety statute or ordinance; or (3) Owners representing one hundred percent (100%) of the Allocated Interest vote not to rebuild.
nofficial Each Owner will at all times: C.
1.
take any and all safety measures reasonably required to protect those using the easements established by this Master Declaration from injury of damage caused by or resulting from the performance of its construction; 2.
indemnify, hold harmless and defend the Declarant, the Master Association and the Owners of the other Units from and against all claims, demands, suits, costs, expenses and liabilities arising from or in any way related to the death, accidental injury, loss or damage caused to any person or the property of any person as shall occur by virtue of its construction; and 3.
indemnify, defend, and hold Declarant, the Master Association and the Owners of the other Units harmless from and against mechanics', materialmen's and/or laborer's liens and all costs, expenses and liabilities arising from its construction.
Section 7.3 Matters Relating to Restoration and Repairs. Any restoration and repair work undertaken by the Master Association pursuant to Section 7.1 shall be performed in a good and workmanlike manner with a view to restoring the Improvements to a condition similar to that existing prior to such damage or destruction; provided, however, that in no event shall the Master
good and workmanlike manner with a view to restoring the Improvements to a condition similar to that existing prior to such damage or destruction; provided, however, that in no event shall the Master Association be responsible for restoring, repairing, or replacing any improvements to a Unit, any fixtures, installations, or additions to such Unit, or the contents located in such Owner's Unit. All such restoration and repair work, whether done by the Master Association or an Owner, shall be effected in a manner so as to observe all vertical and horizontal Unit boundaries existing prior to such damage or destruction.
46 02948-JDB1012050 Harbor Decl-2 #2064665v1 Section 7.4 Obsolescence of Common Elements. If Owners holding one hundred percent (100%) of the Allocated Interests shall vote, at a meeting of the Master Association duly called for purposes of considering same, that the Common Elements or any part thereof (including any Systems which serve only, or are a part of, individual Units) are obsolete, the Master Association shall promptly proceed with the necessary replacements and improvements thereto pursuant to a budget established for such purpose, and the cost thereof shall be and constitute a Special Assessment payable by all Owners within thirty (30) days of the date notice of such Special Assessment is delivered to them by the Master Association.
Section 7.5 Obsolescence of the Property. If the Owners holding one hundred percent (100%) of the Allocated Interests shall determine, at a meeting of the Master Association duly called for purposes of considering same, that the Property is obsolete, the Master Association, after first obtaining the written consent of all First Mortgagees, shall promptly proceed with the sale thereof
for purposes of considering same, that the Property is obsolete, the Master Association, after first obtaining the written consent of all First Mortgagees, shall promptly proceed with the sale thereof in its entirety. Any proceeds from such sale shall be received, held, and applied for and on account of the Owners as provided in Section 7.1(D).
Section 7.6 Master Association as Attorney-in-Fact. Each Owner, by acceptance or possession of title to a Unit, hereby irrevocably makes, constitutes, and appoints the Master Association, and each and every of its successors-in-interest hereunder, as Owner's true and lawful attorney-in-fact, for and in Owner's name, place, and stead, upon the damage or destruction of the Property or any part thereof, or upon any determination by the Owners made pursuant to this Article, to take any and all actions and to execute and deliver any and all instruments, as the Board of Directors may, in its sole and absolute discretion, deem necessary or advisable to effect the intent and purposes of this Article VII, hereby giving and granting unto the Master Association full power and authority to do and perform all and every act whatsoever requisite or necessary to be done in and about the Property as fully, to all intents and purposes, as an Owner might or could do, hereby ratifying and confirming whatsoever the Master Association may do by virtue hereof. The Master Association is hereby authorized, in the name and on behalf of all Owners, to do and perform all actions necessary or appropriate to effect the intent and purposes of this Article, including, without limitation, the power and authority to make and settle claims under any insurance policies
rm all actions necessary or appropriate to effect the intent and purposes of this Article, including, without limitation, the power and authority to make and settle claims under any insurance policies maintained by the Master Association, contract for and with respect to restoration and repair work, contract for and with respect to replacements and improvements to the Common Elements (to the extent authorized or contemplated by Section 7.4 of this Master Declaration), to contract for and with respect to a sale of the Property (to the extent contemplated by Section 7.5 of this Master Declaration), and to execute and deliver all instruments necessary or incidental to any such actions.
Section 8.1 ARTICLE VIII Condemnation General Provisions. If all or any part of the Property is taken or threatened to be taken by eminent domain or by action in the nature of eminent domain (whether permanent or temporary), the Board of Directors and each Owner shall be entitled to participate in the proceedings incident thereto at their respective expense. The Board of Directors shall give such notice as it receives of the existence of such proceedings to all Owners and to all First Lien Mortgagees. The expense of participation in such proceedings by the Board of Directors shall be a Common Expense.
47 official The Board of Directors is specifically authorized to obtain and pay for such assistance from attorneys, appraisers, architects, engineers, expert witnesses, and other persons as the Board of Directors in its discretion deems necessary or advisable to aid or advise it in matters relating to such proceedings. If permitted by the Act, all damages or awards for any such taking shall be deposited
ectors in its discretion deems necessary or advisable to aid or advise it in matters relating to such proceedings. If permitted by the Act, all damages or awards for any such taking shall be deposited with the insurance trustee, otherwise they shall be deposited with the Board of Directors, acting as trustee, and in any case such damages or awards shall be applied or paid as hereinafter provided. Any restoration or repair of the Property following a partial condemnation shall be performed in accordance with the provisions of this Master Declaration and shall follow, as nearly as possible, the original plans and specifications for the Property, unless otherwise approved by all Owners and all First Mortgagees.
Section 8.2 Taking of One Unit. If one Owner's Unit (or a substantial part thereof such that ownership, operation, or occupancy of the remaining portion of the Unit in accordance with the originally intended use of the Unit is impossible or undesirable) is taken by eminent domain or sale or other transfer in lieu thereof, and if an Owner shall vacate and abandon the Owner's Unit by virtue of such taking, the Owner and any First Mortgagee of such Owner shall be entitled to the award for such taking, including the award for the value of such Owner's interest in the Common Elements, whether or not such Common Element interest is acquired, and, after payment thereof, such Owner and Owner's First Mortgagee shall be divested of all interest in the Property. The condemned Unit's entire Allocated Interest shall be automatically reallocated to the remaining Units in proportion to the respective Allocated Interests of those Units before the taking. In the event of any taking of a portion of an Owner's Unit, such that ownership, operation, or occupancy of the remaining portion
o the respective Allocated Interests of those Units before the taking. In the event of any taking of a portion of an Owner's Unit, such that ownership, operation, or occupancy of the remaining portion of the Unit may be continued in accordance with the originally intended use of the Unit, the Owner may not vacate the remaining portion of the Unit. In such case, the Owner shall be entitled to the award for such taking, and the Allocated Interest of the condemned Unit shall be reduced in proportion to the reduction in the size of the Unit. The portion of the Allocated Interest divested from the partially-acquired Unit shall be automatically reallocated to that Unit and the other Units in proportion to the respective Allocated Interests of the Units before the taking, with the partiallyacquired Unit participating in the reallocation on the basis of its reduced Allocated Interest. If any repair or rebuilding of the remaining portions of the Property is required as a result of such taking, the Master Association shall restore or repair the remaining portion of the Unit to substantially the same condition and appearance as existed prior to the condemnation or take such other action as may be deemed appropriate by the affirmative vote or written consent of the Owners owning a majority of the re-allocated Allocated Interests. The cost of any repair or rebuilding shall be assessed against the Owners as a Special Assessment. If no repair or rebuilding shall be required, or if none undertaken, the remaining portion of the Property shall be re-surveyed, if necessary, and the Master Declaration shall be amended to reflect such taking. The Master Declaration shall in all circumstances be amended to reflect the re-allocated Allocated Interests following the condemnation
the Master Declaration shall be amended to reflect such taking. The Master Declaration shall in all circumstances be amended to reflect the re-allocated Allocated Interests following the condemnation and such amendment shall be recorded in the Official Public Records of the County.
Section 8.3 Taking of Common Elements. If an eminent domain action is brought to condemn a portion of the Common Elements, together with or apart from any Unit, the Board of Directors, in addition to the general powers set out herein, shall have the sole authority to determine whether to defend or resist any such proceeding, to make any settlement with respect thereto, or to 48 nofficial convey such property to the condemning authority in lieu of such condemnation proceeding, unless the action involves a material portion of the Common Elements in which case the agreement of all . Owners shall be required. With respect to any such taking of Common Elements only, all damages and awards shall be determine for such taking as a whole and not for any Owner's interest therein.
After the damages or awards for such taking are determined, such damages or awards shall be held by the Board of Directors, acting as trustee for each Owner, or each Owner's mortgagee or mortgagees, as their interest shall appear, in proportion to such Owner's Allocated Interest in the Common Elements, except that the portion of any such award attributable to the condemnation of a Limited Common Element shall be allocated among the Owners of the Units served by such Limited Common Elements, as such Owners' interests existed in the Limited Common Elements condemned. The Board of Directors may, if it deems advisable, call a meeting of the Owners, at
served by such Limited Common Elements, as such Owners' interests existed in the Limited Common Elements condemned. The Board of Directors may, if it deems advisable, call a meeting of the Owners, at which meeting the Owners, by the vote of all Owners, shall decide whether to replace or restore as far as possible the Common Elements taken or damaged. If it is determined that such Common Elements should be replaced or restored by obtaining other land or building additional structures, this Master Declaration and the Plat attached hereto shall be duly amended by instrument executed by the Board of Directors on behalf of the Owners and duly recorded in the Official Public Records of the County.
Section 8.4 Taking of Multiple Units. In the event that an eminent domain proceeding results in the taking of more than one Unit comprising less than two-thirds (%) of the total square footage of the Buildings, then the damage and awards for such taking shall be determined for each Unit and the following shall apply: A. The Board of Directors shall determine which of the Units damaged by such taking may be operational or habitable for the purposes set forth in the Master Declaration, taking into account the nature of the Property and the reduced size of each Unit so damaged.
B. The Board of Directors shall determine whether it is reasonably practicable to operate the remaining portions of the Units as a condominium project in the manner provided in this Master Declaration.
C. If the Board of Directors determines, with the consent of one hundred percent (100%) of the First Mortgagees, that it is not reasonably practicable to operate the remaining portions of the Units which can be made operational or habitable as a condominium project, then the Property shall be deemed to be re-
s, that it is not reasonably practicable to operate the remaining portions of the Units which can be made operational or habitable as a condominium project, then the Property shall be deemed to be regrouped and merged into a single estate owned jointly in the undivided interests by all Owners, as tenants-in-common, in the percentage of the Allocated Interest of each Owner. The damages and awards with respect to each Unit shall be distributed to the Owners or their First Mortgagees, as their interests may appear, as soon as practicable following the Board of Directors determination and receipt of consents of the First Mortgagees.
#nofficial 49 D. If the Board of Directors determines, with the consent of one hundred percent (100%) of First Mortgagees, that it will be reasonably practicable to operate the portions of the Units which can be made operational or habitable as a condominium project, then the damages and awards made with respect to each damaged Unit shall be applied to repair and reconstruct the damaged Units so that they are made operational or habitable. If the cost of such work exceeds the amount of the award, the additional funds required shall be assessed against the Owners in accordance with their Allocated Interests. If the amount of the award exceeds the cost of such work, the excess portion of the award made with respect to a Unit shall be paid to the Owner or Owners of such Unit or their First Mortgagees, as their interests may appear. The remaining portion of any Unit which cannot be made operational or habitable, if any, shall become a part of the Common Elements and repair and use of such portion shall be determined by the Board of Directors.
E.
rtion of any Unit which cannot be made operational or habitable, if any, shall become a part of the Common Elements and repair and use of such portion shall be determined by the Board of Directors.
E.
If the entire Property is taken or damaged by such taking, all damages and awards shall be held for the accounts of all Owners, and their First Mortgagees, as their interests shall appear, as provided herein, in proportion to their Allocated Interests, and this Condominium shall terminate upon such payment to the Master Association. Upon such termination, the Units and Common Elements shall be deemed to be regrouped and merged into a single estate owned in undivided interests by all Owners, as tenants-in-common, in the percentage of the Allocated Interest of each Owner. The damages and awards with respect to each Unit shall be distributed to the Owners or their First Mortgagees, as their interests may appear, as soon as practicable following the conclusion of the condemnation proceedings.
Section 8.5 Payment of Awards and Damages. Any damages or awards provided in this Article to be paid to or for the account of any Owner by the Board of Directors, acting as trustee, shall be applied first to the payment of any taxes or assessments by governmental authorities past due and unpaid with respect to that Unit; second, to amounts due under any mortgage instruments duly perfected; third, to the payment of any Assessments charged to or made against the Unit and unpaid; and finally, to the Owner and the Owner's First Mortgagee, as their interests may appear.
Section 9.1 ARTICLE IX Disputes Mediation. All Disputes, except those relating to equitable remedies, which shall not be resolved within fifteen (15) days after same have arisen (unless such greater time is
n 9.1 ARTICLE IX Disputes Mediation. All Disputes, except those relating to equitable remedies, which shall not be resolved within fifteen (15) days after same have arisen (unless such greater time is provided in the Governing Documents) shall be submitted for, or determined by, non-binding mediation. Mediation of any Dispute shall be initiated by any Owner making a binding written demand therefor to the other Owner or Owners involved in such Dispute and the Master Association.
With respect to such mediation, the parties shall, within ten (10) days after delivery of such written notice, appoint a mediation who is (a) a reputable person actively engaged in the commercial real estate industry for a continuous period of not less than ten (10) years, and (b) is in no way affiliated, or has had material business dealings, with either Owner or any member of the Board of Directors.
50 02948-JDB11012050 Harbor Decl-2 #2064665v1 official If the parties are unable to agree upon a mediator, a mediator having the qualifications set forth above shall be appointed by the then presiding Judge of the United States District Court for the Northern District of Texas, Dallas Division, or such other service as may be recommended by the Dallas Bar Association. Such mediation shall occur within thirty (30) days after the mediator has been appointed and shall occur at a mutually acceptable location in McKinney, Texas. The costs of such mediation services shall be shared equally (but each party shall bear the cost of its own travel and attorneys' fees).
Section 9.2 Final Offer Arbitration. If the parties are unable to resolve any Dispute at mediation, no later than thirty (30) calendar days after the parties have reached an impasse at
torneys' fees).
Section 9.2 Final Offer Arbitration. If the parties are unable to resolve any Dispute at mediation, no later than thirty (30) calendar days after the parties have reached an impasse at mediation, the parties shall submit their Dispute to binding arbitration. The parties agree to select a single arbitrator from a list taken from the American Arbitration Association list of commercial arbitrators, and if they cannot agree on an arbitrator, each party will select a person and those two so selected will then select the single arbitrator who shall thereafter serve as arbitrator. The issues in dispute shall be submitted as "baseball' or final-offer arbitration, whereby each party shall submit what it deems to be its most reasonable position to the arbitrator and the arbitrator shall select one of those two positions. The arbitrator shall have no discretion to select or award a position other than to select one of those submitted by the parties. To the extent rules governing arbitration are deemed necessary by the arbitrator (or by agreement of the parties), the current Rules for Commercial Mediation and Arbitration promulgated by the American Arbitration Association shall apply. Any award that is rendered by the arbitrator shall be accomplished no later than ten (10) days from the initiation of the arbitration procedure. The parties may resort to any court of competent jurisdiction for enforcement of, or any other action relating to, the arbitrator's award.
Section 9.3 Exclusive Remedy. With respect to any Dispute subject to arbitration under this Article, it is agreed that the arbitration provisions of this Section shall be the sole remedy of the Owners involved in such Dispute under this Master Declaration. Notwithstanding any other
nder this Article, it is agreed that the arbitration provisions of this Section shall be the sole remedy of the Owners involved in such Dispute under this Master Declaration. Notwithstanding any other provisions of this Master Declaration, the foregoing agreement to arbitrate shall be specifically enforceable under prevailing arbitration law. The foregoing agreement to arbitrate shall not constitute any agreement or consent to arbitration of any dispute, claim, controversy, or matter that does not constitute a "Dispute" as such term is define herein or not described in this Section or with any person not named or described herein, provided that any arbitration proceeding initiated under the terms of this Article may, at the request of any party, be joined or consolidated with other arbitration proceedings involving additional parties if the Dispute and the subject of the other proceedings arise out of common or interrelated factual occurrences. Any award of the arbitrator shall be final and binding upon the Owners involved in the Dispute and such Owners' First Mortgagees and a nonappealable judgment thereon may be entered by any court having jurisdiction.
51 02948-JDB\1012050 Harbor Decl-2 #2064665v1 official ARTICLE X Mortgagee Protections Section 10.1 Notice to First Mortgagees. All First Mortgagees that have provided the Master Association with a written request identifying the name and address of the First Mortgagee and the mortgaged Unit shall be entitled to receive the following notices in writing from the Master Association, which notice shall be sent promptly following the occurrence of the applicable event: A. Notice of any proposed action which requires the consent of First Mortgagees, which notice shall be given not less than twenty (20) days prior to the
llowing the occurrence of the applicable event: A. Notice of any proposed action which requires the consent of First Mortgagees, which notice shall be given not less than twenty (20) days prior to the desired effective date of such action; B. Notice of default by the Owner or grantor of a First Lien Indebtedness on a Unit (the beneficial interest in which is held by that First Mortgagee) in the performance of such Owner's or grantor's obligations under the Governing Documents or delinquency in the payment of Assessments or charges owed by such Owner to the Master Association, which remains uncured for a period of thirty (30) days; C.
Notice of any lapse, cancellation, or material modification of any insurance policy or fidelity bond required to be maintained hereunder by the Master Association or by any Owner.
D. Notice of any damage or destruction to or condemnation of any portion of the Condominium that affects either a material portion of the Property or the Unit securing a First Lien Indebtedness, which notice shall be given promptly upon the Master Association obtaining knowledge of such damage or destruction; and E. Thirty (30) days written notice prior to the Master Association instituting any foreclosure action on any Unit.
Section 10.2 Cure Rights. Any First Mortgagee shall have the right, but not the obligation, at any time prior to the termination of this Master Declaration, and without payment of any penalty, to do any act or thing required of such First Mortgagee's borrower, and to do any act on thing which may be necessary or proper to be done in the performance and observance of the agreements, covenants, and conditions hereof. All payments made and all things done and performed by any First
hing which may be necessary or proper to be done in the performance and observance of the agreements, covenants, and conditions hereof. All payments made and all things done and performed by any First Mortgagee shall be effective to prevent a default under this Master Declaration as the same would have been if made, done, and performed by Declarant or any Owner instead of by the First Mortgagee. Any event of default under this Master Declaration of a nature that cannot be remedied by the First Mortgagee shall be deemed to be remedied if: (a) within thirty (30) days after receiving written notice from the Master Association or the non-defaulting party setting forth the nature of such event of default, the First Mortgagee shall have acquired the property owned by the defaulting party (the "Acquired Property") or shall have commenced foreclosure or other appropriate 52 02948-JDB\1012050 Harbor Decl-2 #2064665v1 nofficial proceedings; (b) the First Mortgagee diligently prosecutes any such proceedings to completion; (c) the First Mortgagee shall have fully cured any default in the payment of any monetary obligations owed the Master Association or the non-defaulting party hereunder within such thirty (30) day period and shall thereafter continue to perform faithfully all such non-monetary obligations which do not require possession of the Acquired Property; and (d) after gaining possession of the Acquired Property following a foreclosure or deed in lieu thereof, the First Mortgagee performs all other obligations to the Master Association or the defaulting party under this Master Declaration as and when the same are due.
Section 10.3 No Invalidity of Mortgage Lien. No violation of this Master Declaration
tions to the Master Association or the defaulting party under this Master Declaration as and when the same are due.
Section 10.3 No Invalidity of Mortgage Lien. No violation of this Master Declaration by, or enforcement of this Master Declaration against, any party shall impair, defeat, or render invalid the lien of any mortgage.
Section 10.4 Cooperation with First Mortgagee. The Master Association and the Board of Directors agree to cooperate reasonably with any requesting party in regard to the satisfaction of requests or requirements by a First Mortgagee; provided, however, such cooperation shall be at the sole cost and expense of the requesting party; and provided, further, that no party shall be deemed obligated to accede to any request or requirement that materially and adversely affects its rights under this Master Declaration.
Section 10.5 Unpaid Assessments. Each First Mortgagee that obtains title to the Unit securing the payment of the First Lien Indebtedness held by such First Mortgagee pursuant to judicial foreclosure or the powers provided in such mortgage, shall take title to the Unit free and clear of any claims for unpaid assessments or charges against the Unit which accrued prior to the time the First Mortgagee acquires title to the Unit.
Section 10.6 Books and Records. All First Mortgagees, upon written request, shall have the right to: (a) examine the books and records of the Master Association, including current copies of the Master Declaration, Regulations, and financial statements, during normal business hours, (b) require the Master Association to submit an annual audited financial statement for the preceding fiscal year within 120 days of the end of the Master Association's fiscal year, if one is available, or
require the Master Association to submit an annual audited financial statement for the preceding fiscal year within 120 days of the end of the Master Association's fiscal year, if one is available, or have one prepared at the expense of the requesting entity if such statement is not otherwise prepared by the Master Association; (c) receive written notice of all meetings of the Owners; and (d) designate in writing a representative to attend all such meetings.
Section 10.7 Material Changes. All First Mortgagees, upon written request, shall be given thirty (30) days' written notice prior to the effective date of (a) any proposed material amendment to this Master Declaration or the Plat; (b) any termination of an agreement for professional management of the Condominium following any decision of the Owners to assumie self management of the Condominium; and (c) any proposed termination of the Condominium.
Section 10.8 Priority of Rights. No provision of this Master Declaration shall be construed or applied to give any Owner priority over any rights of any First Mortgagee in or to the proceeds or awards that are not applied to restoration, but are distributed to Owners in the case of a casualty loss or a condemnation of a Unit and/or Common Element.
53 official Section 10.9 Management Agreements. Any management agreement and/or service contract entered into by the Master Association (i) will be terminable by the Master Association without cause and without payment of a termination fee upon ninety (90) days' or less written notice, (ii) will have a term not to exceed three (3) years, and (iii) may be renewable by agreement of the parties to such agreement for successive one (1) year periods. In the event of the termination of the
ii) will have a term not to exceed three (3) years, and (iii) may be renewable by agreement of the parties to such agreement for successive one (1) year periods. In the event of the termination of the management agreement, as provided herein, the Master Association may enter into a new management agreement with a new management agent prior to the effective date of the termination of old management agreement. Any decision to establish self-management by the Master Association shall require the prior written consent of Owners holding one hundred percent (100%) of the Allocated Interests.
Section 10.10 Inapplicable to Sub-Unit Mortgagees. The provisions of this Article X shall not apply to a mortgagee of any Sub-Unit that may be created..
ARTICLE XI Special Declarant Rights and Development Rights Section 11.1 Special Declarant Rights. Declarant reserves the following Special Declarant Rights (herein so called), which may be exercised by Declarant at any time during the Declarant Control Period: A.
B.
The right to complete or make improvements indicated on the Plat.
The right to maintain sales offices, management offices, leasing offices, models, and storage areas in Units, Sub-Units, or on the Common Elements.
C.
The right to place and maintain signs, banners, and flags on the Condominium to advertise the sale of Units and Sub-Units.
D.
The right to use, and to permit others to use, the Common Elements as may be reasonably necessary for the purpose of discharging Declarant obligations under the Act and this Master Declaration and for the purpose of constructing, maintaining, managing, and marketing the Condominium.
E. The right to appoint or remove any officer of the Master Association or any member of the Board in accordance with Section 4.5 above.
tructing, maintaining, managing, and marketing the Condominium.
E. The right to appoint or remove any officer of the Master Association or any member of the Board in accordance with Section 4.5 above.
F. The right of entry and access to all Units and Sub-Units to perform warranty-related work, if any, for the benefit of the Unit and Sub-Units being entered, adjoining Units and Sub-Units, or the Common Elements. Requests for entry must be made in advance for a time reasonably convenient for the Owner who may not unreasonably withhold consent.
nofficial 54 G. The right to make and record corrections to the Plat to conform the same to the actual location of the Improvements, the actual size and location of the Units, and/or the proper designation of the elements of the Improvements as Units, General Common Elements, or Limited Common Elements.
H.
The right to establish, vacate, relocate, and use the Easements as set forth in this Master Declaration; provided, however, that no modification of any Easement shall have the effect of altering a Unit unless consented to by such Unit Owner, as well as by the First Mortgagee of any such Unit.
I. The right to include, in any instrument initially conveying a Unit, such additional reservations, exceptions, and exclusions as Declarant may deem consistent with and in the best interests of the Owners and the Master Association.
J.
The right to have and use an easement over, under, and across any and all of the Common Elements to the extent that same may be necessary or useful in constructing, repairing, or completing the Units, the Sub-Units, and the Common Elements or as may be reasonably necessary for the exercise of any Special Declarant
same may be necessary or useful in constructing, repairing, or completing the Units, the Sub-Units, and the Common Elements or as may be reasonably necessary for the exercise of any Special Declarant Rights or the performance of any obligations of Declarant.
K. The right to exercise any Development Right set forth in Section 11.2 hereof or any development right permitted by the Act.
Section 11.2 Development Rights. The Declarant reserves the following Development Rights (herein so called), which may be exercised by Declarant at any time during the Declarant Control Period or such longer period as may be specifically designated: A.
The right to add additional real property to the condominium regime created by this Master Declaration and the right to withdraw real property from the condominium regime created by this Master Declaration.
B. The right by amendment to this Master Declaration to (i) create or delete unsold Units and to (ii) create or delete Common Elements and/or Limited Common Elements within the Condominium, in addition to such matters as are enunciated or depicted in this Master Declaration or the Plats C.
The right by amendment to this Master Declaration to (i) increase or decrease the size of unsold Units, (ii) alter or change the locations of unsold Unite, (iii) subdivide unsold Units, or (iv) convert portions of unsold Units to Common Elements, or (v) convert portions of Common Elements to Units or portions thereof.
D. The right by amendment to this Master Declaration to (i) designate that all or any portion of the Residential Unit be included in the Office Unit and (ii) designate that all or any portion of the Office Unit be included in the Residential Unit.
55 nofficial E.
ential Unit be included in the Office Unit and (ii) designate that all or any portion of the Office Unit be included in the Residential Unit.
55 nofficial E.
The right to construct or complete Buildings or other Improvements shown on the Plat.
F.
The right to construct improvements on the top floor of the Garage in accordance with Section 2.11 hereof.
G. The right to sell or lease, reserved or unreserved parking spaces in the Garage that are not designated as Limited Common Elements; provided, however, in no event shall the number of parking spaces on the Property (including the parking spaces in the Garage) for use by the Owners, the Sub-Unit Owners, the Occupants, and their guests, licensees, and invitees, be less that the minimum number of parking spaces required by the City of McKinney for the Property. All sales proceeds or rental payments generated from the sale or leasing of such parking spaces shall be the property of Declarant. The rights set forth in this Section (i) may be assigned, in whole or part, by Declarant, (ii) shall inure to the benefit of Declarant and its successors and assigns, and (iii) shall not expire upon the expiration of the Declarant Control Period. This Section 11.2G may not be amended without the written consent of Declarant or its assignee.
H.
The right to construct or install a boat or structure resembling a boat, in the general location shown on the Plat, and to utilize such portions of the Property in the vicinity of the boat, as are reasonably necessary for the construction, operation, and maintenance of the boat. All sales proceeds or rental payments generated from the sale of the boat or the leasing of all or portions of the boat shall be the property of Declarant. The rights set forth
aintenance of the boat. All sales proceeds or rental payments generated from the sale of the boat or the leasing of all or portions of the boat shall be the property of Declarant. The rights set forth in this Section (i) may be assigned, in whole or part, by Declarant, (ii) shall inure to the benefit of Declarant and its successors and assigns, and (iii) shall not expire upon the expiration of the Declarant Control Period. This Section 11.2H may not be amended without the written consent of Declarant or its assignee.
I. The rights provided to Declarant in this Master Declaration and in the other Governing Documents.
Section 11.3 Reallocation. Upon the exercise of a Development Right set out in Section 11.2 above, the Allocated Interests of each Unit shall, to the extent applicable, be subject to reallocation in accordance with Section 2.10 above, and Declarant shall have the authority to amend the Master Declaration accordingly.
Section 11.4 Controlling Provisions. In the event of a conflict between the terms and provisions of this Article and other terms and provisions of this Master Declaration, the terms and provisions of this Article shall control.
nofficial 56 ARTICLE XII Miscellaneous Section 12.1 Revocation or Termination of Master Declaration. This Master Declaration may be revoked or the Condominium established herein may be terminated, but only by an instrument duly approved, executed, and acknowledged by Owners holding one hundred percent (100%) of the Allocated Interests and not less than one hundred percent (100%) of the First Mortgagees. Any such instrument of revocation or termination shall be duly filed of record in the
ed percent (100%) of the Allocated Interests and not less than one hundred percent (100%) of the First Mortgagees. Any such instrument of revocation or termination shall be duly filed of record in the Official Public Records of the County. If the Property is to be sold upon termination, the agreement effecting such termination shall also set forth the terms of such sale and comply with the provisions of Section 82.068(c) of the Act.
Section 12.2 Amendment to Master Declaration.
A. This Master Declaration may be amended at a meeting of the Owners at which the amendment is approved by those Owners holding not less than eightyfive percent (85%) of the Allocated Interests. Such amendment shall be evidenced by a written instrument executed and acknowledged by an officer of the Master Association on behalf of the consenting Owners and filed of record in the Official Public Records of the County. Any such amendment so effected shall be binding upon all of the Owners; provided, however, that unless otherwise provided in this Declaration or except as permitted or required by the Act, no such amendment shall: (a) cause the alteration or destruction of a Unit or of a Limited Common Element unless such amendment has been consented to by the Owner and the First Mortgagee of the Unit which is to be altered or destroyed or by the Owner and First Mortgagee of a Unit to which the Limited Common Element that is to be altered or destroyed is appurtenant; (b) increase the number of Units (except as expressly permitted by this Master Declaration); (c) change the boundaries of a Unit (except as expressly permitted by this Master Declaration); (d) alter or destroy a Unit or Limited Common Element (except as permitted by this Master Declaration); or (e) change the use
ries of a Unit (except as expressly permitted by this Master Declaration); (d) alter or destroy a Unit or Limited Common Element (except as permitted by this Master Declaration); or (e) change the use restrictions on a Unit unless such amendment has been consented to by Owners!
holding not less than eighty-five percent (85%) of the Allocated Interests. Any First Mortgagee who receives a written request to approve or consent to amendments to this Master Declaration, and who does not deliver or post to the requesting party a negative response within twenty (20) days after receipt by such First Mortgagee of a complete copy of the proposed amendment, shall be deemed to have approved such request. Notwithstanding the foregoing, no such amendment shall become effective unless approved by Declarant, if Declarant still owns one or more Units.
B.
Notwithstanding anything to the contrary contained in this Article XII, during the Declarant Control Period, Declarant, without the consent of other Owners or any mortgagee, shall, upon not less than thirty (30) days prior written notice to all Owners, have the right and authority to unilaterally amend this Master Declaration, on one or more occasions, to reflect actions to be taken by Declarant pursuant to Sections 11.1 and 11.2 hereof.
57 nofficial C.
Declarant reserves, and shall have the continuing right, until the end of the Declarant Control Period, without the consent of the other Owners or any mortgagee to amend this Master Declaration or any of the other Governing Documents for the purpose of resolving or clarifying any ambiguities or conflicts herein, or correcting any inadvertent misstatements, errors, or omissions herein.
ration or any of the other Governing Documents for the purpose of resolving or clarifying any ambiguities or conflicts herein, or correcting any inadvertent misstatements, errors, or omissions herein.
Section 12.3 Partial Invalidity. In the event any provision of the Governing Documents shall be determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall in no way impair or affect the validity or enforceability of the remainder of such instruments.
Section 12.4 Conflicts. If any of the provisions of the Governing Documents shall be in conflict with the provisions of the Act, the Texas Business Organizations Code, or the Texas NonProfit Corporation Act, the provisions of such statutes shall control. If a conflict exists between the provisions of the Governing Documents, the documents shall control in the following order: 1.
This Master Declaration; 2.
The Certificate of Formation; 3.
The Bylaws; and 4.
The Regulations.
official Section 12.5 Captions and Exhibits. Captions used in the various articles and sections of this Master Declaration are for convenience only, and they are not intended to modify or affect the meaning of any of the substantive provisions hereof. All exhibits attached to this Master Declaration are incorporated in and made a part of this Master Declaration.
Section 12.6 Usury. It is expressly stipulated and agreed to be the intent of Declarant that at all times the terms of the Governing Documents shall comply strictly with the applicable Texas law governing the maximum rate or amount of interest payable under any provision of the Governing Documents. If the applicable law is ever judicially interpreted so as to render usurious any amount
as law governing the maximum rate or amount of interest payable under any provision of the Governing Documents. If the applicable law is ever judicially interpreted so as to render usurious any amount contracted for, charged, taken, reserved, or received pursuant to the Governing Documents or any other communication or writing by or among Declarant, the Master Association, and the Owners related to the matters set forth in the Governing Documents, then it is the express intent of Declarant that all amounts charged in excess of the maximum rate allowed by Texas law shall be automatically canceled and all amounts in excess of the maximum rate allowed by Texas law collected shall be refunded, and the provisions of the Governing Documents shall immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new document, so as to comply with the applicable law. Owners hereby agree that as a condition precedent to any claim seeking usury penalties against Declarant, the Master Association, or any billing Owner, any Owner will provide written notice to Declarant, the Master Association, or any billing Owner, advising Declarant, the Master Association, or any billing Owner in reasonable detail of the nature and amount of the violation, and Declarant, the Master Association, or any billing Owner shall have sixty (60) days after receipt of such notice in which to correct such usury violation, if any, by either refunding such excess interest to an Owner or crediting such excess interest against the obligation then owing by such Owner to Declarant, the Master Association, or any billing Owner.
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to an Owner or crediting such excess interest against the obligation then owing by such Owner to Declarant, the Master Association, or any billing Owner.
58 Section 12.7 Governing Law. THIS MASTER DECLARATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS. VENUE FOR ANY ACTION BROUGHT IN CONNECTION WITH THE CONDOMINIUM SHALL BE IN COLLIN COUNTY, TEXAS.
Section 12.8 Estoppel Certificates. Each Owner, from time to time, but no more often than three (3) times per calendar year, shall have the right to require the Master Association and the other Owners to deliver to the requesting Owner a written statement addressed to the requesting Owner and its First Mortgagee or purchaser of its Unit, as applicable, without payment of any fee or reimbursement of any cost certifying: A. that, to the knowledge of the certifying party, this Master Declaration is unmodified and in full force and effect (or, if modified, that this Master Declaration as so modified is in full force and effect); .
B.
that, to the knowledge of the certifying party, the Master Declaration attached to the certificate is a true and correct copy of this Master Declaration and all amendments hereto; C.
that, to the knowledge of the certifying party, the requesting party is not in default of any of its obligations under this Master Declaration (of if the certifying party knows the requesting party to be in default, specifying the defaults and any remaining cure period, if any); D. that the certifying party holds no existing liens against the Unit of the requesting party; E. the date through which all Assessments have been paid by the requesting Owner; and Owner.
F.
such other matters as are reasonably requested by the requesting
ainst the Unit of the requesting party; E. the date through which all Assessments have been paid by the requesting Owner; and Owner.
F.
such other matters as are reasonably requested by the requesting Section 12.9 Notice. All notices, demands, or other notices intended to be served upon an Owner shall be hand delivered, sent by certified mail, postage prepaid, or by commercial delivery service or courier, addressed to the name of such Owner in care of the Unit and address of such Owner. All notices, demands, or other notices intended to be served upon the Board or the Master Association shall be sent by the same method to Declarant at 401 Adriatic Parkway, McKinney, Texas 75070, until a notice of address change is duly recorded in the Official Public Records of the County.
59 nofficial Section 12.10 Use of Name. No Owner, Sub-Unit Owner, or Occupant shall use the name "The Harbor at Adriatica Condominiums" or any derivative of such nature without the prior written consent of Declarant, during the Declarant Control Period, or the Board, after the Declarant Control Period. However, Owners and Sub-Unit Owners may use such name in printed or promotional materials prepared in connection with the sale or lease of their respective Units or Sub-Units where such name is used solely to specify that the Unit or Sub-Unit is located within the Condominium.
IN WITNESS WHEREOF, Declarant has duly executed this Master Declaration on the day and year first above written.
STATE OF TEXAS DECLARANT: SB HARBOR MARKET JOINT VENTURE, a Texas joint venture By: BLACKARD SB HARBOR, LP, a Texas limited partnership - Venturer By: BLACKARD GENERAL PARTNER II,, INC., a Texas corporation - General Partner nofficial By: Jeffory D. Blackard President
int venture By: BLACKARD SB HARBOR, LP, a Texas limited partnership - Venturer By: BLACKARD GENERAL PARTNER II,, INC., a Texas corporation - General Partner nofficial By: Jeffory D. Blackard President COUNTY OF COLLIN This instrument was acknowledged before me on February 110 2009, by JEFFORY D. BLACKARD, President of BLACKARD GENERAL PARTNER II, INC., a Texas corporation and General Partner of BLACKARD SB HARBOR, LP, a Texas limited partnership and a Venturer of SB HARBOR MARKET JOINT VENTURE, a Texas joint venture, on behalf of said entities.
My Commission Expires: Trace аси Notary Public, State of Texas TRACEY MILLER My Commission Expires Printed or TypeNota MAIN OF TRE 60 02948-JDB\1012050 Harbor Decl-2 #2064665v1