X609177 $840.00 05/13/04 HC File X609177 300406784 DECLARATION OF CONDOMINIUM FOR MEMORIAL BEND PLACE CONDOMINIUM 04 MAY 13 FI 1:51 May 12 th 2004 AFTER RECORDING RETURN TO: Richard C. Lievens Frank, Elmore, Lievens, Chesney & Turet, L.L.P.
808 Travis Street, Suite 2600 Houston, Texas 77002 CG:MemorialBend: Declaration051104 TABLE OF CONTENTS 1.
A.
Definitions.
Act...
B.
Articles C.
Assessment D.
Association • E.
Balcony...
F.
Board or Board of Directors G.
Building...
H.
Bylaws.
I.
Casualty J.
Common Element Costs.
K.
Common Elements.
L.
Common Expenses M.
N.
0.
Common Expense Fund Condominium Documents Condominium Plan .
P.
Condominium Q.
Condominium Unit.
R.
Declarant..
S.
Declaration T.
Deed U.
Director V.
Eligible Mortgagee W.
Entry Patio...
X.
First Mortgage.
Y.
First Mortgagee Z.
Garage Approach AA.
BB.
Land ...
CC.
DD.
General Common Elements Limited Common Elements Maintenance Manual EE. Majority of Unit Owners FF.
GG.
Managing Agent . . .
Master Policy.
• HH. Memorial Bend Place Condominium GG.
Mortgagee.
JJ. Owner CG:Memoria/Bend:Declaration051104 i " 1 1 2 2 2 2 2 2 3 " 3 3 3 3 3 4 5 5 5 5 5 5 3.
KK.
Percentage of Common Interest Ownership LL.
Person.
MM. President ... .
NN.
Record of Mortgages.
00.
Regular Assessments.
PP.
Replacement Reserve Fund QQ.
Rules and Regulations RR.
Secretary...
SS.
Special Assessments TT.
Unit ...
UU.
Unit Costs 2.
A The Condominium.
Units Common Elements 6 6 6 • 6 • 6 • 6 6 6 6 6 6 7 7 7 A.
General Common Elements • B.
Limited Common Elements C.
Use of the Common Elements D.
4.
A.
B.
Common Elements.
C.
Utilities 5.
Easements and Licenses A.
For Owners.
B.
For Utilities C.
For the Declarant and the Association D.
For Encroachments 6.
Units . . .
A.
B.
Description of Units . . .
C.
Approximate Measurements.
ies 5.
Easements and Licenses A.
For Owners.
B.
For Utilities C.
For the Declarant and the Association D.
For Encroachments 6.
Units . . .
A.
B.
Description of Units . . .
C.
Approximate Measurements.
D. Boundaries of Units E.
F.
7.
فن فة A.
B.
C.
Votes . . . . .
D.
Who Can Vote 7 8 9 Transfer of Interest in Common Elements Maintenance Responsibilities Owners' Responsibilities 9 9 9 11 11 11 11 12 12 13 13 Designation and Percentage Ownership of Units .
13 13 14 • 14 • Percentages of Common Interest Ownership Maximum Units Membership in the Association Members Transfer of Membership 15 15 15 15 15 16 16 ii CG:MemorialBend: Declaration051104 8.
A.
B.
Association Administration and Management .
Books and Records . . . . .
Mortgagee Access to Books and Records 16 16 16 C.
Association Records ....
17 D.
Association Costs and Expenses .
17 E.
Bylaws...
17 F.
G.
H.
I.
Administration by Association/Managing Agent Board of Directors Declarant Control of the Association . . . .
Termination of Contracts and Leases of Declarant 17 ⋅ 19 19 20 J.
Management Certificate.
20 K.
Resale Certificate . . .
20 L.
Maintenance Manual 21 M.
Restrictions on Alienation of Common Elements .
21 9.
Meetings of Owners 21 A.
First Meeting 21 B.
Annual Meetings 22 10.
Directors 22 • A.
Number of Directors. .
22 B.
Terms of Directors.
22 C.
Election of Officers.
23 .
D.
Indemnity of Board 23 E.
Contracts.
23 11.
Assessments .
23 A.
Regular Monthly Assessments for Common Expenses.
B. Common Expenses, Assessments.
23 23 C.
Reserves for Assessments 23 ...
D.1.
Special Assessments 24 2.
Individual Purpose Assessments. .
24 E.
Assessments as Capital Contributions 25 F.
Computation and Apportionment of Assessments.
25 G.
Payments by Declarant in Lieu of Assessments 25 H.
essments 24 2.
Individual Purpose Assessments. .
24 E.
Assessments as Capital Contributions 25 F.
Computation and Apportionment of Assessments.
25 G.
Payments by Declarant in Lieu of Assessments 25 H.
Default for Failure to Pay Assessments.
26 I Right of Redemption 28 ].
235x4 Additional Remedies..
29 K.
L.
No Exemptions From Liability for Common Expenses Statement of Assessments . . .
29 29 M.
Common Expense Fund 29 N.
Failure to Provide Notice of Regular Assessments .
29 iii CG:MemorialBend: Declaration051104 OFFICE OF BEVERLY B. KAUFMAI COUNTY CLERK, HARRIS COUN A 12.
0. Notice to Owners.
Obligations of Owners and Owner Action 13.
Insurance A. Owner's Insurance .
29 30 30 30 31 14.
B. Association's Insurance Termination of Condominium; Reconstruction or Repair; Condemnation . . . .
34 A.
Termination of Condominium Project 34 B.
Damage or Destruction. . .
36 C.
Obsolescence.
38 D.
Condemnation 38 ...
E.
Notice to First Mortgagees 41 15.
Restrictions on Use … … … … … 41 A.
Permitted Uses of Units 41 • B.
Alterations, Additions and Improvements.
42 C.
Leases ..
44 D.
Offensive Activities 46 E.
Signage 46 F.
Pets/Animals 46 G.
H.
I.
Storage/Refuse/Obstructions Maintenance Compliance with Laws 46 47 47 ].
No Right of First Refusal.
47 K.
Vehicles ..
47 L.
Fireworks.
47 M.
Guest Parking 48 N.
16.
A.
Condominium B.
C.
17.
18.
Business and Sales Office.
Sale and Ownership ...
Deed/Description of Unit.
Capacity of Owners . . . . . .
Uniform Applicability of Condominium Documents .
Mortgages and Mortgagee Protections.
48 48 48 48 48 48 49 A.
Record of Mortgages B.
Notices to Mortgagees C.
Effect on Mortgagees.
D.
Agreements with Subordinate Lienholders E.
Binding on Mortgagees.
F.
Financial Statements 49 49 49 49 50 50 CG:MemorialBand: Declaration051104 iv G.
19.
20.
A.
o Mortgagees C.
Effect on Mortgagees.
D.
Agreements with Subordinate Lienholders E.
Binding on Mortgagees.
F.
Financial Statements 49 49 49 49 50 50 CG:MemorialBand: Declaration051104 iv G.
19.
20.
A.
Working Capital Requirements Boundaries Amendments and Modifications Amendments . . . .
50 50 51 51 B.
Subdivision of Units .
52 C.
Approval by Mortgagees of Amendments 53 D.
Amendments by Declarant.
53 21.
Taxation. ...
54 A.
Of Units After Separate Assessment..
54 B.
Of Units Prior to Separate Assessment.
54 22.
Remedies...
54 23.
Miscellaneous 55 A.
Effect of Accordance or Recordation of a Deed 55 B.
Severability, Interpretation 55 C.
No Waiver 55 D.
Separation of Estates.
55 E.
No Gift or Dedication 55 F.
Mechanic's and Materialman's Liens 55 G.
Security ...
56 H.
Indoor Air Quality And Environmental Conditions.
58 I.
Claims against Declarant 59 J.
Exhibits.
59 K.
Notices 60 L.
Omissions 60 M.
Captions and Exhibits 60 N.
Use of Number and Gender 60 0.
Conflicting or Inconsistent Provisions.
60 P.
Governing Law...
Use of Names, Proprietary Information 60 60 Q: Exhibit List Exhibit "A" Part I - Articles Part II - Bylaws Exhibit "B" Exhibit "C" Condominium Plan Part I - Legal Description of Land Part II - Site Exhibit Part III - Plan of Each Building (including Units) Part IV - Percentage Ownership Easements and Licenses CG:MemorialBend:Declaration051104 V DECLARATION OF CONDOMINIUM FOR MEMORIAL BEND PLACE CONDOMINIUM This Declaration of Condominium (this "DECLARATION") is made and executed this 12 day of May 2004, by TCR MEMORIAL BEND HOLDINGS LIMITED PARTNERSHIP, a Texas limited partnership ("Declarant"), pursuant to and in accordance with the provisions of the Texas Uniform Condominium Act, as
ay of May 2004, by TCR MEMORIAL BEND HOLDINGS LIMITED PARTNERSHIP, a Texas limited partnership ("Declarant"), pursuant to and in accordance with the provisions of the Texas Uniform Condominium Act, as now existing or hereafter amended, the same being Chapter 82 of the Property Code, Vernon's Texas Code Ann. (the "Act"), for the purpose of submitting the hereinafter described real property and the Improvements located or to be located thereon to a condominium regime.
WITNESSETH WHEREAS, Declarant is the owner of certain real property (the "Land") and the Improvements constructed thereon (collectively, "Memorial Bend Place", "Memorial Bend Place Condominium" or the "Condominium"), situated in the County of Harris, State of Texas, consisting of nineteen (19) buildings containing up to one hundred forty-two (142) individual residential units therein and certain other improvements located thereon more particularly described in the Condominium Plan (hereinafter defined); and WHEREAS, Declarant desires by recording this Declaration to establish a condominium under the provisions of the Act with respect to the Condominium, and has on or about the date hereof caused to be incorporated, a Texas nonprofit corporation known as Memorial Bend Place Owners Association, Inc.; NOW, THEREFORE, Declarant does upon the recording hereof establish MEMORIAL BEND PLACE CONDOMINIUM as a condominium and does declare that Memorial Bend Place Condominium shall, after such establishment, be held, conveyed, hypothecated, encumbered, leased, rented, occupied, improved and in any other manners utilized, subject to the provisions of the Act and to the covenants, conditions, restrictions, uses, limitations and affirmative obligations set forth in this Declaration, all
and in any other manners utilized, subject to the provisions of the Act and to the covenants, conditions, restrictions, uses, limitations and affirmative obligations set forth in this Declaration, all of which shall be deemed to run perpetually with all or any portion of Memorial Bend Place Condominium unless terminated as provided herein and shall be a burden and a benefit to, and binding on, Declarant and any persons or entities acquiring or owning any interest in Memorial Bend Place Condominium, and their respective heirs, devisees, legal and personal representatives, successors and assigns. In furtherance of the establishment of the Condominium, it is provided as follows: 1. Definitions. Unless the context otherwise specifies or requires, the following words and phrases when used herein shall have the following meanings: A. Act shall have the meaning set forth in the introductory section of this Declaration.
1 CG:MemorialBend: Declaration051104 B. Articles mean the Articles of Incorporation of the Association, and all amendments thereto. A copy of the Articles, as filed (or which will be filed) in the office of the Secretary of State, is attached hereto as Exhibit "A", Part I.
C. Assessment. A share of the funds required for the payment of Common Expenses which from time to time are assessed against any Owner, including Regular Assessments, Special Assessments, dues, fees, charges, interest, late fees, fines, collection costs, attorneys fees, and any other amounts due to the Association by the Owner or levied against the Unit by the Association.
D. Association. Memorial Bend Place Owners Association, Inc., a nonprofit corporation organized pursuant to the Texas Non-Profit Corporation Act, its successors
ed against the Unit by the Association.
D. Association. Memorial Bend Place Owners Association, Inc., a nonprofit corporation organized pursuant to the Texas Non-Profit Corporation Act, its successors and assigns, of which all Owners shall be members, which corporation shall be the governing and administrative body for all Owners for the protection, preservation, upkeep, maintenance, repair, operation and replacement of the common elements, and the government, operation and administration of the Condominium and the Condominium hereby established.
E. Balcony means a balcony or "Juliet" balcony, if any, attached or made a part of the Building and appurtenant to a Unit, as depicted as "Balcony Area" on the Condominium Plan. Any such Balcony shall be deemed to constitute a part of the Unit.
Board or Board of Directors. The Board of Directors of the Association, as established in the Articles and the Bylaws.
F.
G. Building(s) The term "Building" in the singular shall be a reference to one of the 18 residential buildings situated on the Land and the one (1) non-residential building situated on the land constituting the clubhouse/community building; and the term "Buildings" shall be a reference to all of the residential buildings as shown on the Condominium Plan.
H.
Bylaws. The Bylaws of the Association attached hereto as Exhibit "A", Part II, and incorporated herein by reference for all purposes, which shall govern the administration of the Association, as such Bylaws may be from time to time hereafter lawfully amended.
I. Casualty. A fire, storm, earthquake, flood, natural disaster or other occurrence of any kind or nature which causes damage or destruction to any part of the Condominium.
hereof.
J.
Common Element Costs shall have the meaning set forth in Section 14.B
l disaster or other occurrence of any kind or nature which causes damage or destruction to any part of the Condominium.
hereof.
J.
Common Element Costs shall have the meaning set forth in Section 14.B K. Common Elements. Shall constitute all of the General Common Elements and all of the Limited Common Elements of the Condominium, exclusive of the Units, as more particularly described in Section 3 hereof.
CG:MemorialBend: Declaration051104 2 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK. HARRIS COUNTY, TEXAS CONDOMINIUM RECORDS OF COUNTY C 188189 L. Common Expenses. Expenses incurred after the date the first Deed conveying a Unit is recorded in the Real Property Records of Harris County, Texas, for the improvement, maintenance, repair, operation, management and administration of the Condominium; expenses declared Common Expenses either by the provisions of this Declaration or the Bylaws; and all sums lawfully assessed against the Common Elements by the Board. Common Expenses shall include sums assessed to maintain a Replacement Reserve Fund for the repair and replacement of the Common Elements.
M. Common Expense Fund shall mean the fund into which Regular Assessments for Common Expenses are collected, and out of which Common Expenses are paid.
N.
Condominium Documents: (i) this Declaration; (ii) the Articles; (III) the Bylaws; (Iv) the Rules and Regulations and (v) the Condominium Plan.
0. Condominium Plan. The plans or plats of the Condominium attached hereto as Exhibit "B", comprised of the following parts: P.
(I) Part I a legal description of the Land; (ii) (111) (iv) Part II a plat of the Condominium showing the location of the Buildings and related improvements; Part III a plat of each of the Buildings showing, among other
scription of the Land; (ii) (111) (iv) Part II a plat of the Condominium showing the location of the Buildings and related improvements; Part III a plat of each of the Buildings showing, among other matters, each Unit In each Building, its boundaries (horizontal and vertical), area, floor and Unit number; and Part IV Percentage ownership interests allocated to each Condominium Unit.
Condominium. Memorial Bend Place Condominium as a Condominium established in conformance with the provisions of the Act, Including the Land, and Improvements (including the Buildings), buildings, structures, facilities, fixtures and equipment constructed, placed or erected therein or thereon and to be renovated, and all easements, rights, hereditaments and appurtenances thereto in any wise belonging or appertaining thereto, subject to the reservations herein contained.
Q. Condominium Unit. A Unit together with the undivided share of or ownership Interest in the Common Elements appurtenant thereto which interest in General Common Elements corresponds to its Percentage of Common Interest Ownership as more particularly described in Section 6.E. hereof, together with the rights of that Unit in any Limited Common Elements designated for that Unit, whether exclusively or in conjunction with one or more of the Units.
R.
Declarant. TCR Memorial Bend Holdings Limited Partnership, a Texas limited partnership its successors and assigns (insofar as any rights or obligations of Declarant are expressly assigned by it in whole, in part or by operation of law), including, but not limited to, a person, firm, corporation, limited liability company, ° 3 CG:MemorialBend:Declaration051104 partnership, association, trust or other legal entity, or any combination thereof, who or
not limited to, a person, firm, corporation, limited liability company, ° 3 CG:MemorialBend:Declaration051104 partnership, association, trust or other legal entity, or any combination thereof, who or which acquires all or substantially all of the Units then owned by Declarant, together with its rights hereunder, by conveyance or assignment from Declarant, or by judicial or nonjudicial foreclosure, for the purpose of selling such Units to the public.
S.
T.
Declaration. This Declaration of Condominium.
Deed. Each Deed by which Units are conveyed by Declarant to Owners other than Declarant.
U.
V.
Director. A member of the Board.
Eligible Mortgagee. A Mortgagee holding a mortgage on a Unit, which has submitted a written request that the Association notify it on any proposed action requiring the consent of a specified percentage of Eligible Mortgagees.
W. Entry Patio (sometimes referred to as a "Patio") means a patio or exterior covered entry to the entry door into a Unit, if any, attached or made part of the Building and appurtenant to a Unit, as depicted as an "Entry Patio" on the Condominium Plan. Any such Entry Patio shall be deemed to constitute a part of the Unit.
X.
First Mortgage shall mean a mortgage, deed of trust, or other security Interest on a Condominium Unit which has priority over all other mortgages, deeds of trust, or security interests on the Condominium Unit.
Y.
First Mortgagee shall mean and refer to any person named as a mortgagee or beneficiary under any First Mortgage, or any successor to the interest of any such person under such First Mortgage.
Z. Garage Approach means an exterior covered entry to the garage of a Unit, as depicted as a "Garage Approach" on the Condominium Plan. Any such Garage
st of any such person under such First Mortgage.
Z. Garage Approach means an exterior covered entry to the garage of a Unit, as depicted as a "Garage Approach" on the Condominium Plan. Any such Garage Approach shall be deemed to constitute a part of the Unit.
AA. General Common Elements shall mean the Land and all buildings and other improvements thereon except the Units and Limited Common Elements, and shall include, without limiting the generality of the foregoing, all of these items described or referenced in Section 3 hereof.
BB. Land. A tract or parcel of land containing approximately 5.3756 acres being described as: TRACT I All of ALEXAN MEMORIAL BEND SEC. 1, a subdivision of 4.6255 acres out of the George Bellows Survey, Abstract 3, in the City of Houston, Harris County, Texas, according to the plat thereof filed for record under Film Code No. 487022 of the Map Records of Harris County, 4 CG:MemorialBend:Declaration051104 Texas, and TRACT II All of ALEXAN MEMORIAL BEND SEC. 2, a subdivision of 0.7501 acres out of the George Bellows Survey, Abstract 3, in the City of Houston, Harris County, Texas, according to the plat thereof filed for record under Film Code No. 529029 of the Map Records of Harris County, Texas.
CC. Limited Common Elements shall mean those Common Elements which are either limited to and reserved for the exclusive use of one Owner, or limited to and reserved for the common use of more than one, but fewer than all, of the Owners, and shall include, but not be limited to, all of those items described or referenced in Section 3 hereof.
DD. Maintenance Manual shall mean the Maintenance Manual prepared by Declarant with respect to the Condominium.
EE. Majority of Unit Owners means the Owner or Owners of Units whose
n Section 3 hereof.
DD. Maintenance Manual shall mean the Maintenance Manual prepared by Declarant with respect to the Condominium.
EE. Majority of Unit Owners means the Owner or Owners of Units whose aggregate undivided Percentages of Common Interest Ownership in the Common Elements is in excess of fifty percent (50%).
FF. Managing Agent shall mean any professional manager (whether a person or firm) who contracts with the Board to manage the Condominium for an agreed compensation.
GG. Master Policy. The master insurance policy maintained by the Association pursuant to Section 13 hereof.
HH.
II.
Memorial Bend Place Condominium. The Condominium.
Mortgagee. A bank, savings and loan association, Insurance company, mortgage company, real estate investment trust, recognized institutional-type lender or its loan correspondent, agency of the United States government, person, corporation, limited liability company, partnership, association, trust corporation or other legal entity (including, without limitation, Declarant) which owns, holds, is the beneficiary of or collateral assignee of the beneficiary of a mortgage, deed of trust or security interest encumbering a Condominium Unit.
]]. Owner. A person or persons (or their estate(s), firm, corporation, limited liability company, partnership, association, trust or other legal entity, or any combination thereof) who or which jointly or collectively own aggregate fee simple record title to one (1) or more Units, including, without limitation, Declarant, but does not include a person or entity having an interest in a Unit solely as security for an obligation, or a person or entity having an equitable interest in a Unit by virtue of, without limitation, an installment land contract, a contract for deed, a lease with an
solely as security for an obligation, or a person or entity having an equitable interest in a Unit by virtue of, without limitation, an installment land contract, a contract for deed, a lease with an option to purchase, or purchase option.
CG:MemorialBend: Declaration051104 LO KK. Percentage of Common Interest Ownership. The percentage of common interest ownership assigned to each Unit pursuant to Section 6.E. hereof.
LL. Person. A natural individual, corporation, limited liability company, partnership, trustee, association, personal representative or other legal entity capable of holding title to real estate.
MM.
NN.
President. The President of the Board.
Record of Mortgages shall have the meaning set forth in Section 18.A.
00.
Regular Assessments. Assessments which are described in Section 11.A hereof.
PP.
Replacement Reserve Fund shall constitute the fund, funded by a portion of the Common Expenses and/or by purchasers of Units as provided in Paragraph 11c hereof, for the purpose of replacing those Common Elements which must be replaced on a periodic basis QQ. Rules and Regulations. The Rules and Regulations of the Association, the initial version of which are attached to the Bylaws as Schedule "A", as from time to time amended by the Board in accordance with the provisions of this Declaration and the Bylaws, concerning the use by Owners of the Common Elements and the administration of the Condominium.
RR.
SS.
II.A. hereof.
Secretary. The Secretary of the Board.
Special Assessments. Assessments other than those described Section TT. Unit. One of the separate and individual units of space into which the Buildings are divided for individual and separate use and ownership, as provided for in
ts other than those described Section TT. Unit. One of the separate and individual units of space into which the Buildings are divided for individual and separate use and ownership, as provided for in the Act and described in this Declaration and the plats attached hereto, including the air space encompassed by the boundaries of the Units, and interior surfaces contained within the demising walls, closed doors and closed windows of the Unit and the structural floor and ceiling of such Unit as shown on the Condominium Plan, also Including all fixtures and improvements therein contained, but not any of the structural components of the Buildings, and certain other construction and elements thereof or therein which are to be individually and separately owned, as hereinafter defined, described and established in this Declaration. The enclosed garage on the first floor (ground floor) of each Unit, and any Balcony, Entry Patio, and Garage Approach appurtenant to a Unit shall also constitute a part of the Unit.
hereof.
UU. Unit Costs shall have the meaning ascribed thereto In Section 14.B.
6 CG:MemorialBend: Declaration051104 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK, HARRIS COUNTY, TEXAS SINIUM RECORDS OF COUNTY CI The Condominium.
2.
A Units. The individual Units, more particularly described in Section 6 hereof, are to be used only for the purposes permitted in Section 15 hereof. Each Owner shall own title in fee simple to his or her Unit and shall have the exclusive right to the use and occupancy of his or her Unit, subject to the provisions of this Declaration. There shall be appurtenant to each Unit: 3.
(i) An undivided share of the General Common Elements corresponding to its Percentage of Common Interest Ownership and the
e provisions of this Declaration. There shall be appurtenant to each Unit: 3.
(i) An undivided share of the General Common Elements corresponding to its Percentage of Common Interest Ownership and the exclusive right to use such Limited Common Elements as are appurtenant to such Unit; and (ii) Membership of the Owner In the Association.
Common Elements. The Common Elements of the Condominium are as follows: A. General Common Elements. The General Common Elements consist of: (1) The Land, Including all drives, driveways, sidewalks, outside walkways, controlled access facilities, landscaping and parking areas; (II) (til) (iv) (v) (vi) The foundations, main, common and bearing walls, girders, slabs, beams and columns (excluding any windows, doors, and garage doors therein constituting fixtures appurtenant to, or serving the individual units), exterior walls to interior of studs, structural and supporting parts of the Buildings, roofs, ceilings, floors, halls, mechanical rooms, areas used for storage of maintenance and janitorial equipment and materials, thoroughfares such as stairways, entrances, exits or communications ways, storage areas, service easements and any other portion of the Buildings not included within any Unit or designated hereby as a Limited Common Element; Utilities and, in general, all devices or Installations existing for common use by the Owners; Parking spaces, if any, open or surface parking, which are not designated as portions of a Unit in this Declaration or on the Condominium Plan; The premises, facilities and tangible personal property, if any, used for the common storage, maintenance, operation or repair of the Condominium; Personal property, facilities and equipment, if any, used for the
, facilities and tangible personal property, if any, used for the common storage, maintenance, operation or repair of the Condominium; Personal property, facilities and equipment, if any, used for the maintenance, operation, or repair of the Condominium, or used for 7 CG:MemorialBend: Declaration051104 B.
the purpose of providing any services to the Condominium, the Units, or to the Owners.
(vil) The fire protection system, controlled access system, and other mechanical or other systems, and components relating thereto installed by the Declarant or the Association for the benefit of all Owners; (viii) To the extent that they serve more than one Unit, cable or satellite receivers, other telephone, cable, video and fiber optic facilities and all equipment appurtenant thereto (if any) Installed by the Declarant or the Association for the benefit of all or more than one of the Owners; (ix) (x) (xi) The components or installation of equipment and materials comprising central services such as electrical power, gas, water, reservoirs, waste collection, water tanks and pumps, fire sprinkler system components, and all similar devices and installations which serve more than one Unit installed by the Declarant or the Association for the benefit of all or more than one of the Owners; The individual water meters serving each unit (and the water lines providing service to each meter); All other elements necessary to the existence, upkeep and safety of the Condominium including any portion of the Buildings and the Land not specifically a Unit, appurtenant to a Unit or a Limited Common Element; (xii) All other structures, facilities and equipment not part of or serving the Unit(s) and located in the Condominium; and (xili) All replacements and additions to any of the foregoing.
mmon Element; (xii) All other structures, facilities and equipment not part of or serving the Unit(s) and located in the Condominium; and (xili) All replacements and additions to any of the foregoing.
Limited Common Elements. The Limited Common Elements, being those Common Elements which are hereby designated as reserved for the use by specified Owners to the exclusion of others, consist of the following: (i) If any, air handlers, pipes, ducts, electrical wiring, communication equipment, conduits, chutes, flues, ducts, wires, plumbing fixtures, that portion of the fire sprinkler system constituting valves and heads serving only one), smoke/fire detection alarms, bearing walls, bearing columns or other fixtures either partially within and/or partially outside the designated boundaries of a Unit, that portion serving only that Unit is a Limited Common Element allocated solely to that Unit, and that portion serving more than one Unit or the Common Elements is a part of the General Common Elements; and 8 CG:MemorialBend: Declaration051104 (II) Attic spaces, directly above each Unit C. Use of the Common Elements. Each Owner shall have the right and nonexclusive easement to use and enjoy the Common Elements, in common with all other Owners, for the purposes for which they are intended and as may be required for the purposes of access and ingress and egress to and the use and occupancy and enjoyment of the respective Units owned by such Owners without hindering or encroaching upon the lawful rights of other Owners; provided, however, that the Association may temporarily suspend an Owner's rights under the easement granted herein, other than for Ingress and egress, for the failure to pay Assessments or to abide
; provided, however, that the Association may temporarily suspend an Owner's rights under the easement granted herein, other than for Ingress and egress, for the failure to pay Assessments or to abide by the Rules and Regulations for use of the Common Elements. Such right to use and enjoy the Common Elements shall extend to each Owner, the members of his and/or her immediate family, the tenants or other lawful occupants of each Unit and their guests, visitors, invitees or permittees, and all such other persons as may be invited or permitted by the Board or its representative to use or enjoy the Common Elements or any part thereof. Such right to use the Common Elements shall be subject to and governed by the provisions of the Act and the Condominium Documents. The Common Elements are not subject to partition and 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 interest is allocated is void. Each Owner shall be deemed to have an easement in the interest of all other Owners in the Common Elements for the installation, maintenance, repair or replacement of all individually owned fixtures, equipment and appliances which are in any way affixed to, supported by or located in any space or structure constituting part of the Common Elements, and the cost of such Installation, maintenance, repair or replacement shall be borne by such Owner. The costs and expenses for the maintenance, repair, upkeep, operation and replacement of the Common Elements shall be a common expense of all Owners In proportion to their respective Percentages of Common Interest Ownership.
D. Transfer of Interest in Common Elements. Unless otherwise provided
ommon Elements shall be a common expense of all Owners In proportion to their respective Percentages of Common Interest Ownership.
D. Transfer of Interest in Common Elements. Unless otherwise provided herein, any conveyance, encumbrance, judicial sale or other transfer (voluntary or Involuntary) of an individual interest in the Common Elements will be vold unless the Unit to which that interest is allocated is also transferred as part of the transaction.
4.
Maintenance Responsibilities.
A.
Owners' Responsibilities.
(i) Each Owner shall bear the cost of maintenance, repair and replacement of the following items within such Owner's Unit: Any and all lath, furring, wallboard, sheetrock, plasterboard, plaster, paneling, tiles, wallpaper, paint, or other materials constituting a part of the interior surfaces of the perimeter walls and ceilings; interior surfaces of all structural or load bearing interior walls; interior surfaces of all floors (including carpeting, tile, finished flooring, wood flooring, and all other portions of the floors 9 CG:MemorialBend: Declaration051104 € (II) constituting a part of the finished surfaces); nonstructural or nonload-bearing interior walls; all flooring components of the floors between the first and second floor and between the second and third floor, heating, cooling and ventilation systems; garbage disposals, ranges, refrigerators, dishwashers and any and all other appliances of any nature whatsoever; interior and exterior doors; garage doors, interior and exterior window fixtures; Interior glass surfaces, exterior glass surface facing onto balconies or otherwise easily accessible to a Unit Owner, window panes, mullions and light bulbs; plumbing and other fixtures of any nature whatsoever from
surfaces, exterior glass surface facing onto balconies or otherwise easily accessible to a Unit Owner, window panes, mullions and light bulbs; plumbing and other fixtures of any nature whatsoever from the point at which the plumbing or other fixtures commence service to the individual unit; heating and air-conditioning equipment both inside the Unit and those integral mechanical components located outside the Unit; "built-in" features; any decorative features; balcony, or patio areas (including walls and fences, if any) and any furniture and furnishings. Provided, however, that the exteriors of the doors, garage doors, all glass in windows and doors, and all balconies, patios and walls and fences surrounding same shall remain in conformity with the original installation. Further provided, that the Association shall be responsible to paint the exteriors of doors and garage doors on each Unit. In particular, the Owner shall have performed the inspections recommended in the Maintenance Manual for the property for which the Owner is responsible for maintenance, and all necessary maintenance when recommended as a result of these inspections. THE OWNER HEREBY WAIVES ALL CLAIMS IT MIGHT OTHERWISE HAVE AGAINST THE ASSOCIATION, THE DECLARANT, ITS CONTRACTOR AND SUBCONTRACTORS, AND DESIGN CONSULTANTS AND SUBCONSULTANTS WITH RESPECT TO THE PROPERTY AS TO WHICH SUCH INSPECTIONS ARE NOT TIMELY PERFORMED, OR AS TO WHICH MAINTENANCE IS RECOMMENDED IF THE RECOMMENDATIONS FOR MAINTENANCE ARE NOT IMPLEMENTED.
Should an Owner fail to maintain or repair its Unit or any portion of the Limited Common Elements appurtenant to such Unit, the Board may effectuate same and assess the Owner for the cost thereof, plus a service charge equal to ten percent (10%) of the cost.
portion of the Limited Common Elements appurtenant to such Unit, the Board may effectuate same and assess the Owner for the cost thereof, plus a service charge equal to ten percent (10%) of the cost.
Within thirty (30) days after the date of acquiring an interest in a Unit, the Owner shall provide the Association with: (a) the Owner's mailing address, telephone number and driver's license number, if any; (b) the name and address of the holder of any lien against the Unit and any loan number; (c) the name and telephone number of any Person occupying the Unit other than the Owner or Owners; and (d) the name, address and telephone number of any Person managing the Unit as agent for the Owner and (e) the license plate no(s). for all vehicles utilizing the Unit's appurtenant parking space(s). An Owner shall notify the Association within thirty (30) days after the Owner has notice of a change of any of the 10 CG:MemorialBend: Declaration051104 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK, HARRIS COUNTY, TEX information set forth in (a) through (e) above, and shall provide that information on request by the Association from time to time.
B. Common Elements. The Common Elements shall be maintained in good condition by the Association, subject to reasonable wear and tear and Casualty. The costs and expense for the upkeep and maintenance of the Common Elements shall be a Common Expense of the Owners, and shall be included in the Assessments for the usual and ordinary costs and expenses for the maintenance, repair, upkeep and operation of the Common Elements, and each Owner shall pay his or her pro-rata share thereof. In particular, the Association shall have performed the Inspections recommended in the Maintenance Manual for the property for which the Association is
ner shall pay his or her pro-rata share thereof. In particular, the Association shall have performed the Inspections recommended in the Maintenance Manual for the property for which the Association is responsible for maintenance, and all necessary maintenance when recommended as a result of these inspections. The Association shall indemnify, defend and hold harmless Declarant, its contractors and subcontractors, and design consultants and subconsultants with respect to all claims made concerning the property as to which such Inspections are not timely performed, or as to which maintenance is recommended if the recommendations for maintenance are not implemented.
C.
Utilities. Each Owner shall bear the cost of any utility service for his or her Unit which is individually metered and billed directly by the utility company furnishing such service to such Owner, or which is individually sub-metered and billed by the Association to the Owner. Telephone, and electricity, shall be made available to each Unit and shall be individually metered. Each Unit shall be pre-wired by the Declarant for television, and until or unless the Association, acting through the Board, provides cable or satellite television services to the Owners as a Common Expense, the cost of such television service shall be the expense of the individual Owner, and billed directly to each Owner by the provider of the television service. The cost of water, gas (if any), trash removal and any other utility service not individually metered or submetered or otherwise allocated or determined by the Association, in its sole discretion, shall be a Common Expense. With the exception of common ownership with other Owners, no Owner shall be deemed to own the utilities which run through his or her Unit and serve
, in its sole discretion, shall be a Common Expense. With the exception of common ownership with other Owners, no Owner shall be deemed to own the utilities which run through his or her Unit and serve one or more other Units.
5.
Easements and Licenses. In addition to the easements and licenses recited in Exhibit "C" hereto, the ownership of each Condominium Unit shall be subject to the easements and licenses which are described in this Section 5.
A. For Owners. Each Owner shall have the following easements to, through and over the Common Elements to the extent necessary for such Owner's maintenance responsibilities: (i) (ii) to paint, remove and replace any finish on the interior surface of any Common Element within his or her Unit; to install, repair, maintain, remove and/or replace any plumbing, heating, cooling, lighting, cooking or other fixture or equipment which is a part of his or her Unit or which would become a part thereof when Installed in any bearing wall, floor, ceiling or roof, 11 CG:MemorialBend: Declaration051104 (ili) provided, however, that such installation, repair, maintenance, removal and/or replacement shall not impair the structural integrity of the Building, nor shall it adversely affect any adjacent Unit, nor shall it alter the external appearance of the Building, nor shall it be visible from the outside of the Building, nor shall it be performed on the roof of the Condominium without the written permission of the Association; and to drive and remove nails, screws, bolts and the like Into and from bearing walls, floors, ceiling and roof; provided, however, that such action shall not impair the structural integrity of the Building, nor shall it adversely affect any adjacent Unit, nor shall it alter the
walls, floors, ceiling and roof; provided, however, that such action shall not impair the structural integrity of the Building, nor shall it adversely affect any adjacent Unit, nor shall it alter the exterior appearance of the Building, nor shall it be performed on the roof of the Condominium without the written permission of the Association.
An Owner has an unrestricted right of ingress and egress, subject to the reasonable rules and regulations promulgated by the Board, to his or her Unit. Such right of ingress and egress is perpetual and passes with the transfer of ownership of the Unit.
B. For Utilities. Municipalities and authorized public utilities (or private companies) furnishing services, lines, pipes, wires, conduits, facilities and equipment to the Condominium for common use such as water, electricity, gas, cable television or similar services, and/or telephone shall have access to the Common Elements and each Unit as may be necessary or desirable for the installation, repair, maintenance, removal and/or replacement of such services, subject to the prior approval of the Declarant during the period of Declarant Control, and thereafter, by the Association. Any costs Incurred in opening and repairing any wall of the Condominium to install, repair, maintain, remove or replace such authorized services (except as otherwise provided herein) for common use shall be a Common Expense. However, installed utility lines, public or private, shall be considered to be located in a valid easement and may remain in the installed location and be repaired and/or replaced in such location.
C. For the Declarant and the Association. Declarant and the Association (and their duly authorized representatives and agents) shall have a reasonable right of entry
and/or replaced in such location.
C. For the Declarant and the Association. Declarant and the Association (and their duly authorized representatives and agents) shall have a reasonable right of entry into any Unit to (I) make emergency repairs, (II) enforce the terms of the Condominium Documents, (ili) protect the property rights and welfare of other Owners, (iv) do other work reasonably necessary for the proper maintenance or operation of the Condominium, (v) perform any of the duties and obligations of Declarant and the Association which are set forth in the Condominium Documents, (vi) prevent or terminate waste of water purchased by the Association as a Common Expense, and (vii) perform maintenance and repairs of the Unit that, If not performed, may result in increased damage by water to components of the Condominium that the Association maintains. Except in the event of an emergency, or in the event the Board or its agents are unable to contact any Owner or occupant of a Unit after reasonable effort, such right of entry shall be exercised only in the presence of the Owner or other occupant of the Unit entered. Such right of entry shall be exercised in a manner as to avoid unreasonable interference with the possession, use or enjoyment of the Unit and shall, 12 CG:MemorialBend:Declaration051104 whenever reasonably possible, be preceded by reasonable notice to the Owner or occupant thereof. The Association shall have the right to grant permits, licenses and easements on, over, under and across the Common Elements for utility, access and other purposes reasonably necessary or useful for the proper maintenance, enjoyment and operation of the Condominium.
D. For Encroachments. If any portion of the Common Elements shall be
y, access and other purposes reasonably necessary or useful for the proper maintenance, enjoyment and operation of the Condominium.
D. For Encroachments. If any portion of the Common Elements shall be situated or encroach upon any Unit, or if any Unit shall actually encroach upon any portion of the Common Elements, as the Units and Common Elements actually and physically exist, or as shown by the Condominium Plan, then there shall be deemed to be mutual valid easements for such encroachments and for the maintenance of same so long as such encroachments exist; provided, however, such easement or easements shall not relleve an Owner of liability in case of the Owner's willful misconduct or failure to adhere to the Condominium Plan. In the event the Building or other structure is totally or partially damaged or destroyed and then repaired, restored or rebuilt, the Owners agree that all encroachments of or upon the Common Elements due to repair or reconstruction shall be permitted and that all valid easements for such encroachments and maintenance thereof shall exist.
6.
Units.
A.
Designation and Percentage Ownership of Units. On the Condominium Plan, the Units located in the Buildings are numbered by Unit number, and the percentage ownership attributable to each such respective Unit is shown. Generally, the percentage ownership attributable to each such respective Unit is based upon the total gross square footage area of each Unit (including "conditioned" space and "nonconditioned" space) as to each Unit, as same relates to the total gross square footage area of all Units (including "conditioned" space and "non-conditioned" space), all as shown on the Condominium Plan. Further, the Condominium Plan includes, In the "area
the total gross square footage area of all Units (including "conditioned" space and "non-conditioned" space), all as shown on the Condominium Plan. Further, the Condominium Plan includes, In the "area definition", the method of measurements as to the Units to establish such "conditioned" area for the sole purpose of establishing such percentage ownership.
B. Description of Units. Each Unit shall consist of the following portions of the Building: (1) the Interior surface of each Unit's perimeter walls; (II) the interior surface of the celling of the topmost floor of each Unit; (III) the upper surface of the concrete floor of the first level/ground level each Unit; (iv) the interior surface (including all glass or glass substitutes) of the windows, and doors set in each Unit's perimeter walls; (v) the interior surface of each Balcony (the outward boundary of each Balcony constituting a vertical plane, immediately adjacent to the interior, inner surface of the Balcony railing, from the floor of the Balcony extending upward to the ceiling of the Balcony, or if no ceiling to a line extending outward from the uppermost window or door opening onto such Balcony), the interior surface of each Entry Patio (the outward boundary of any such Entry Patio constituting a line extending down from the outermost roof covering of such Entry Patio to the concrete floor), and the interior surface of each Garage Approach (the outward boundary of such Garage Approach constituting a line extending down from the outermost roof covering of the Garage Entry to the concrete floor) appurtenant to a Unit, (vi) any and all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring and other materials 13 CG:MemorialBend: Declaration051104
appurtenant to a Unit, (vi) any and all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring and other materials 13 CG:MemorialBend: Declaration051104 constituting part of the interior surfaces of (i) through (v) above; (vii) the air space enclosed within the area described and delineated In (i) through (v) above; (viii) any and all walls, ceilings, floors, partitions, dividers, fixtures and improvements wholly within such air space (but excluding any pipes, ducts, wires, cables, conduits, bearing beams or supports contained within such walls, ceilings, floors, partitions and dividers, or between chase walls or within such air space as per Section 3.A. hereof); and (ix) all plumbing, heating, ventilating, air conditioning, lighting, cooking and other fixtures and equipment either wholly within a Unit and serving only such Unit (exclusive of pipes, ducts, wires, cables or conduits located within such air space as per Section 3.B.
hereof) or outside the boundaries of such Unit and serving any such Unit.
In the event that there is any ambiguity, dispute, or disagreement as to the physical location of the boundaries of the Unit or any part thereof (including the dimensions of any Entry Patio, Balcony, or Garage Approach forming a part of such Unit), the Declarant, during the Declarant Control Period, and thereafter the Association, acting by and through its Board of Directors, shall have the authority to determine and establish the physical location of the Unit boundary as to any specific unit and such determination shall be binding upon the Unit Owner. Provided, however, that such determination shall not result in or require any change in the measurement of
boundary as to any specific unit and such determination shall be binding upon the Unit Owner. Provided, however, that such determination shall not result in or require any change in the measurement of any such Unit or adjustment to the Percentage of Common Ownership Interest as to such Unit.
C.
Approximate Measurements. It is expressly stipulated, and each and every Owner, his or her heirs, devisees, legal and personal representatives, and successors and assigns accepting title to a Condominium Unit subject to this Declaration acknowledges that the square footage, size and linear dimensions of each Unit (as shown on the Condominium Plan), and each area constituting any part of the Common Elements as set out and shown in this Declaration or the plans and documents attached hereto, are approximate and are shown for descriptive purposes only and do not necessarily reflect or represent the precise percentage of square footage of any specific portion of the Condominium, and that Declarant does not warrant, represent or guarantee that any Unit actually contains the square footage, size and linear dimensions and elevation reflected thereon or herein. Each Owner further acknowledges that he or she shall have had full opportunity and is under a duty to inspect and examine his or her Unit prior to the purchase thereof and agrees that the Unit is purchased as actually and physically existing, and expressly waives any claim or demand of any kind which he or she may have against Declarant or any person whomsoever by reason of any difference, shortage or discrepancy between such Owner's Unit as actually and physically existing and as reflected on the Condominium Plan, and further waives any requirement for adjustments to the percentage ownership
ge or discrepancy between such Owner's Unit as actually and physically existing and as reflected on the Condominium Plan, and further waives any requirement for adjustments to the percentage ownership of interest shown in the Condominium Plan unless approved by the requisite percentage of Owners and Mortgagees.
D. Boundaries of Units. In interpreting deeds, mortgages, deeds of trust and other instruments for any purpose whatsoever or in connection with any matter, the existing physical boundaries of the Units or of any Unit reconstructed in substantial accordance with the original plans thereof shall be conclusively presumed to be the boundaries, regardless of settling, rising, or lateral movement of the Building, and 14 CG:MemorialBend: Declaration051104 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK. HARRIS COUNTY. TEXAS regardless of variances between the boundaries shown on the Condominium Plan and those of the Building.
E.
Percentages of Common Interest Ownership. The Percentage of Common Interest Ownership assigned to each Unit is set forth in Part IV of the Condominium Plan attached hereto as Exhibit "B"; and shall be determinative of the weight assigned to such Owner's vote at meetings of the Association and the proportionate share of each respective Owner in: (i) the General Common Elements, (ii) the proceeds of any Condemnation distributable pursuant to Section 14 hereof, and (ii) the Assessments.
The total of the Percentages of Common Interest Ownership assigned to all Units in the Condominium is one hundred percent (100%).
Each Percentage of Common Interest Ownership in the Common Elements so allocated pursuant to the foregoing paragraph was assigned by Declarant to the designated Unit
ium is one hundred percent (100%).
Each Percentage of Common Interest Ownership in the Common Elements so allocated pursuant to the foregoing paragraph was assigned by Declarant to the designated Unit solely for purposes of this Declaration and, regardless of any other matter, such Percentage of Common Interest Ownership shall remain fixed and constant and, except as provided herein, the same cannot be changed except by the written consent of each and every Owner and Mortgagee of such Unit, duly executed, acknowledged and filed for record as a partial amendment to this Declaration. The ownership Interests in the Common Elements shall be undivided interests and the Common Elements shall remain undivided and shall not be the object of an action for partition or division of the ownership, so long as such ownership interests are sultable in the context of a condominium; and, in any event, all Mortgagees must be paid prior to the bringing of an action for partition, or the consent of all Mortgagees to such action must be obtained. The percentage of the Common Elements allocated to each Unit shall not be separated from such Unit or separately sold, conveyed, encumbered or otherwise separately disposed of, and each interest In the Common Elements shall follow the respective Unit to which it is allocated, and shall be deemed to be conveyed and/or encumbered with its respective Unit to which it is allocated even though the description in the instrument of conveyance or encumbrance shall refer only to the Unit.
F. Maximum Units. The maximum number of Units that Declarant reserves the right to create within the Condominium shall be one hundred forty-two (142).
7. Membership in the Association. Membership in the Association and voting by
m number of Units that Declarant reserves the right to create within the Condominium shall be one hundred forty-two (142).
7. Membership in the Association. Membership in the Association and voting by Owners shall be in accordance with Bylaws of the Association and the following provisions: A. Members. Upon becoming an Owner, each Owner shall automatically become a member of the Association and shall remain a member thereof until such time as his or her ownership ceases for any reason, at which time his or her membership in the Association shall also automatically cease, and no other person or entity shall be entitled to membership in the Association, except as expressly provided herein or in the Bylaws. No Owner shall be required to pay any consideration whatsoever solely for his or her membership in the Association.
B.
Transfer of Membership. The share of an Owner in the funds and assets of the Association cannot be assigned, pledged or transferred in any manner except as an CG:MemorialBend: Declaration051104 15 appurtenance to his or her Unit. Upon any transfer of ownership of any Unit, the new Owner acquiring or succeeding to such ownership interest shall likewise automatically succeed to such membership in the Association.
C. Votes. Except as otherwise provided herein or in the Bylaws, each Owner shall be entitled to a vote, the value of which shall equal the total of the Percentages of Common Interest Ownership assigned to the Units owned by such Owner as set forth in this Declaration. Provided, however, that any Owner who has been given notice by the Board or by the President that he or she is in violation of the Condominium Documents, whether by virtue of delinquency in payment of Assessments or otherwise, shall not be
as been given notice by the Board or by the President that he or she is in violation of the Condominium Documents, whether by virtue of delinquency in payment of Assessments or otherwise, shall not be entitled to vote at any meeting of the Association (unless otherwise required by the Act) until such default has been cured.
D. Who Can Vote. No Owner, other than Declarant, shall be entitled to vote at any meeting of the Association until such Owner has presented evidence of ownership of a Condominium Unit to the Association (and written proxy if voting by proxy). The vote of each Owner may only be cast by such Owner or by a written proxy given by such Owner to his or her duly authorized representative. If title to a Unit shall be in the name of two (2) or more Owners, any one (1) of such Owners may vote as the Owner at any meeting of the Association and such vote shall be binding on such other Owners who are not present at such meeting unless written notice to the contrary has been received by the Association, in which case the unanimous action of all such Owners (in person or by proxy) shall be required to cast their vote as Owners. If two (2) or more of such Owners are present at any meeting of the Association, then unanimous action shall be required to cast their vote as Owners. Declarant or its representative may exercise all the votes allocated to the unsold Units while same are owned by Declarant.
Association Administration and Management.
8.
A. Books and Records. The Association or Managing Agent shall keep or cause to be kept detailed books and records showing all expenditures and receipts of the administration of the Condominium which shall specify the maintenance and repair expenses of the Common Elements and any other expenses incurred by or on behalf of
all expenditures and receipts of the administration of the Condominium which shall specify the maintenance and repair expenses of the Common Elements and any other expenses incurred by or on behalf of the Association and the Owners. Such books and records shall be open for inspection by Owners during reasonable working hours on weekdays and shall be audited annually by qualified independent auditors in accordance with generally accepted accounting principles within ninety (90) days after the end of any fiscal year of the Condominium, or as soon thereafter as practicable. Unless the Board shall determine otherwise, the fiscal year of the Association shall be the calendar year. The cost of such audit shall be an expense of the administration of the Condominium, and copies of any such audit shall be made available to all Owners.
B. Mortgagee Access to Books and Records. A Mortgagee shall, upon written request, be entitled to: (1) inspect the Condominium Documents and the books and records of the Condominium, (ii) receive, an annual financial statement of the Condominium, as soon as the same is available to the Owners, (iii) receive written notice of all meetings of the Association and (iv) be permitted to designate a representative to attend all meetings of the Association.
16 CG:MemorialBend: Declaration051104 C. Association Records. In addition to the financial records described in Section 8A., the Association or Managing Agent shall keep or cause to be kept: (i) the plans and specifications used to renovate the Condominium, to the extent furnished by the Declarant; (ii) the condominium information statement and any amendments thereto, (III) the name and address of each Owner, (iv) voting records, proxies and
Condominium, to the extent furnished by the Declarant; (ii) the condominium information statement and any amendments thereto, (III) the name and address of each Owner, (iv) voting records, proxies and correspondence relating to amendments to the Declaration, and (v) minutes of meetings of the Association and the Board of Directors. All financial and other records of the Association shall be available at its principal office for examination during normal business hours by an Owner and/or the Owner's authorized agent, and holders, insurers and guarantors of any First Mortgages.
D.
Association Costs and Expenses. All costs incurred by the Association, including, but not limited to, any costs (including attorneys' fees) incurred in satisfaction of any liability arising herein, caused by or in connection with the Association's operation, maintenance or use of the Condominium, shall be an Association expense. All sums received by the Association, including, but not limited to, all sums received as proceeds of, or pursuant to, any policy of insurance carried by the Association, shall be the receipts of the Association.
E. Bylaws. The governance and administration of the Condominium shall be in accordance with the Bylaws which have been initially adopted by Declarant as sole Owner of the Condominium, and which are attached hereto as Exhibit "A". The Bylaws may be amended by Declarant as hereafter provided and from time to time by the Association in accordance with the provisions thereof.
F.
Administration by Association/Managing Agent. The affairs of Memorial Bend Place Condominium shall be administered by the Association. Unless otherwise expressly stated in this Declaration or the Bylaws, the Association, acting through its board of directors, may: (i)
l Bend Place Condominium shall be administered by the Association. Unless otherwise expressly stated in this Declaration or the Bylaws, the Association, acting through its board of directors, may: (i) adopt and amend the Bylaws; (ii) (ill) (iv) adopt and amend budgets for revenues, expenditures, and replacement reserves, and collect Assessments from Owners; borrow money, and grant llens or security Interests in properties owned by the Association (which excludes Common Elements and/or Units unless such Units are owned by the Association) as security therefor, including the Association's right to future income from common expense assessments; hire and terminate Managing Agents and other employees, agents, and independent contractors, provided that any agreement for professional management of the Condominium, or any other contract providing for services of the Declarant, may not exceed three years and must provide for termination by either party without cause and without payment of a termination fee on 90 17 CG:MemorialBend: Declaration051104 (v) (vi) days or less prior written notice; institute, defend, intervene in, settle, or compromise litigation or administrative proceedings in its own name on behalf of Itself or two or more Owners on matters affecting the Condominium; make contracts and incur liabilities relating to the operation of the Condominium; (vii) regulate the use, maintenance, repair, replacement, modification, and appearance of the Condominium; (vill) adopt and amend rules regulating the use, occupancy, leasing or sale, maintenance, repair, modification, and appearance of Units and Common Elements, to the extent the regulated actions affect Common Elements or other Units; (ix) cause additional improvements to be made as a part of the Common Elements; (x)
appearance of Units and Common Elements, to the extent the regulated actions affect Common Elements or other Units; (ix) cause additional improvements to be made as a part of the Common Elements; (x) acquire, hold, encumber, and convey in its own name any right, title, or interest to real or personal property, except Common Elements; (xi) acquire, lease, encumber, exchange, sell, or convey a Unit; (xii) grant easements, leases, licenses, and concessions through or over the Common Elements; (xiii) impose and receive payments, fees, or charges for the use, rental or operation of the Common Elements and for services provided to Owners; (xiv) Impose interest and late charges for late payments of assessments, returned check charges, and, if notice and an opportunity to be heard are given, reasonable fines for violations of the Declaration, Bylaws, and Rules and Regulations; (xv) adopt and amend rules regulating the collection of delinquent Assessments and the application of payments; (xvi) adopt and amend rules regulating the termination of utility service to a Unit, the Owner of which is delinquent in the payment of an Assessment that is used, in whole or in part, to pay the cost of that utility; (xvii) Impose reasonable charges for preparing, recording, or copying.
declaration documents, resale certificates, or statements of unpaid 18 CG:MemorialBend:Declaration051104 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK, HARRIS COUNTY, TEXAS CONDOMINIUM RECORDS OF COUNTY CLERK 188193 Assessments; (xviii) enter a Unit for bona fide emergency purposes when conditions present an imminent risk of harm or damage to the Common Elements, another Unit, or the occupants; (xix) assign its right to future income, including the right to receive
ency purposes when conditions present an imminent risk of harm or damage to the Common Elements, another Unit, or the occupants; (xix) assign its right to future income, including the right to receive Regular Assessments, but only to the extent this Declaration so provides; (xx) suspend the voting privileges of or the use of certain Common Elements by an Owner delinquent for more than thirty (30) days in the payment of Assessments; (xxi) purchase insurance and fidelity bonds it considers appropriate or necessary; (xxii) exercise any other powers conferred by this Declaration, the Articles or Bylaws; (xxiii) exercise any other powers that may be exercised in the State of Texas by a corporation of the same type as the Association; and (xxiv) exercise any other powers necessary and proper for the government and operation of the Association.
Any of the duties, powers and functions of the Board may be delegated to the Managing Agent.
G.
Board of Directors. The affairs of the Association shall be managed by a Board of Directors, subject to the provisions in Section H below, providing for a period of Declarant control of the Association. At or as soon as convenient after the organizational meeting of the Association, the Association shall elect the first Board of Directors which shall consist of not less than three (3) members, all of whom shall serve without pay or compensation (except as provided in the Bylaws), for such term as specified in the Bylaws.
H. Declarant Control of the Association. There shall be a period of Declarant control of the Association during which the Declarant, or persons designated by the Declarant, may appoint and remove the officers and members of the Board of Directors. During such period of Declarant control, the members of the Board shall
he Declarant, or persons designated by the Declarant, may appoint and remove the officers and members of the Board of Directors. During such period of Declarant control, the members of the Board shall serve at the pleasure of the Declarant and the number of members may be reduced to three (3). The period of Declarant control terminates not later than the earlier of the 120th day after conveyance of seventy-five percent (75%) of the Units that may be created to Owners other than the Declarant or three (3) years after the first Unit is conveyed. No later than the 120th day after conveyance of fifty percent (50%) of the Units that may be created to Owners other than the Declarant, not less than one-third of the members of the Board of Directors must be elected by Owners other than the 19 CG:MemorialBend:Declaration051104 Declarant. Not later than the termination of the period of Declarant control, the Owners including Declarant shall elect a Board of Directors of at least three (3) members (which may Include the Declarant), all of whom shall be Owners. If any Unit is owned by a partnership or corporation, any officer, partner or employee of that Owner shall be eligible to serve as a Director and shall be deemed to be an Owner for purposes of the preceding sentence. The Board of Directors shall elect the officers of the Association before the 31st day after the date the period of Declarant control terminates. The persons elected shall take office on election.
I.
Termination of Contracts and Leases of Declarant. The Association may terminate, without penalty, contracts or leases between the Association and the Declarant or an affiliate of Declarant if: (i) the contract or lease is entered into by the Association when the Association is controlled by the Declarant; (ii)
leases between the Association and the Declarant or an affiliate of Declarant if: (i) the contract or lease is entered into by the Association when the Association is controlled by the Declarant; (ii) the Association terminates the contract or lease before the first anniversary of the date a Board of Directors elected by the Owners takes office; and (iii) the Association gives at least ninety (90) days' notice of its intent to terminate the contract or lease to the other party.
J. Management Certificate. The Association shall record in the Office of the County Clerk of Harris County, Texas, a certificate, signed and acknowledged by an officer of the Association, stating: (1) the name of the Condominium, (II) the name of the Association, (III) the location of the Condominium, (iv) the recording date of this Declaration, and (v) the mailing address of the Association, or the name and malling address of the Managing Agent. The Association shall record an updated management certificate within thirty (30) days after the date the Association has notice of a change in any of the information set forth in (i) through (v) above as set forth in the recorded management certificate.
K.
Resale Certificate. In connection with the sale of any Unit (other than a sale by Declarant), the Association shall furnish to the selling Owner or the Owner's agent, within ten (10) days after the date of receiving a written request from the Owner, a resale certificate containing the following information: (i) the current operating budget of the Association; (II) any right of first refusal or other restraint contained in the Declaration that restricts the right to transfer a Unit; (III) the amount of the periodic Regular Assessments and the unpaid Regular Assessments or Special
refusal or other restraint contained in the Declaration that restricts the right to transfer a Unit; (III) the amount of the periodic Regular Assessments and the unpaid Regular Assessments or Special Assessments currently due and payable by the selling Owner; (iv) other unpaid fees or amounts payable to the Association by the selling Owner; (v) capital expenditures, if any, approved by the Association for the next twelve (12) months; (vi) the amount of reserves, if any, for capital expenditures and of portions of those reserves designated by the Association for a specified project; (vii) any unsatisfied judgments against the Association; (viii) the nature of any pending suits against the Association; (ix) Insurance coverage provided for the benefit of unit owners; (x) whether the Board of Directors has knowledge that any alterations or improvements to the Unit or the 20 CG:MemorialBend:Declaration051104 Limited Common Elements assigned to that Unit violate the Declaration, the Bylaws or the Rules and Regulations; (xi) whether the Board of Directors has received notice from a governmental authority concerning violations of health or building codes with respect to the Unit, the Limited Common Elements assigned to that Unit, or any other portion of the Condominium; (xii) the remaining term of any leasehold estate that affects the Condominium and the provisions governing an extension or renewal of the lease; (xiii) the name, mailing address, and telephone number of the Managing Agent, if any; and (xiv) such other information as the Association may deem appropriate. The Association shall not be liable to a selling Owner or such Owner's prospective purchaser for delay or failure to furnish a resale certificate, and an officer or agent of the Association is not
te. The Association shall not be liable to a selling Owner or such Owner's prospective purchaser for delay or failure to furnish a resale certificate, and an officer or agent of the Association is not liable for a delay or fallure to furnish a resale certificate unless the officer or agent willfully refuses to furnish the resale certificate or is grossly negligent in not furnishing the resale certificate.
In the event that a properly executed resale certificate incorrectly states the total of delinquent sum owed by the selling Owner to the Association, the purchaser shall not be liable for payment of additional delinquencies that are unpaid on the date the resale certificate is prepared and that exceed the total sum stated in the resale certificate; provided, however, in no event shall a resale certificate affect: (I) the Association's right to recover debts, claims, or amounts that are due by the selling Owner which became due prior to the date the certificate was prepared, regardless of whether the resale certificate correctly stated the total of the delinquent sum owed by the selling Owner to the Association; (il) the Association's right to recover debts or claims that arise or become due after the date the certificate is prepared; or (iii) the Association's lien on a Unit securing payment of future Assessments.
L.
Maintenance Manual. In connection with the sale of any Unit (other than a sale by Declarant), the Association shall furnish to the purchasing Owner, within ten (10) days after the date of receipt of a written request from the Owner, a copy of the Maintenance Manual or equivalent written maintenance instructions, if any.
M. Restrictions on Alienation of Common Elements. Notwithstanding any
eipt of a written request from the Owner, a copy of the Maintenance Manual or equivalent written maintenance instructions, if any.
M. Restrictions on Alienation of Common Elements. Notwithstanding any other provision of this Declaration, the Association may not seek to abandon, partition, subdivide, encumber, sell or transfer the Common Elements, or any part thereof, by act or omission, without first receiving the prior written approval thereof by Owners holding at least sixty-seven percent (67%) of the Common Interest Ownership (other than that held by the Declarant) or First Mortgagees holding sixty-seven percent (67%) of the First Mortgages (based on one vote for each First Mortgage held). Nothing in this Section 8.M. shall limit the authority of the Association to grant an easement for the use of any public utility(les) or for any other public purpose(s) consistent with the intended use of the Common Elements by the Condominium.
9.
Meetings of Owners.
A. First Meeting. The first meeting of Owners shall be held not later than the earlier of (i) one hundred twenty (120) days following the conveyance by Declarant of more than seventy-five percent (75%) of the Units created, to Owners other than Declarant or (ii) three (3) years after the first Unit is conveyed by Declarant. Until the 21 CG:MemorialBend: Declaration051104 first meeting of Owners, the affairs of the Association shall be managed by the first Board named in the Articles or their successors, and during such period it shall have the right to exclusively represent, act as and constitute the Board of Directors, and shall have the right to exclusively exercise and perform all of the rights, powers, authority, functions and duties herein or in the Act or Bylaws given to the Association or the
ard of Directors, and shall have the right to exclusively exercise and perform all of the rights, powers, authority, functions and duties herein or in the Act or Bylaws given to the Association or the Board; provided, however, not later than one hundred twenty (120) days following the conveyance by Declarant of more than fifty percent (50%) of the Units, not less than one-third of the members of the Board of Directors shall be elected by Owners other than the Declarant.
B.
Annual Meetings. Following the first meeting of Owners, there shall be an annual meeting of Owners at which the Board, or a portion thereof, shall be elected, and other meetings as provided for herein or in the Bylaws. Special meetings of Owners shall be called by the President, a majority of the Directors or Owners having twenty percent (20%) of the Percentages of Common Interest Ownership entitled to be cast at such special meeting. Notice of time, place and subject matter of all meetings shall be personally delivered, delivered electronically, or mailed to each Owner or to the individual representative designated by such Owner at the last address given by such Owner to the Association. If any Owner shall fail to give an address to the Association for the mailing of notices, all notices shall be personally delivered or mailed to the Unit of such Owner, and such Owner shall be deemed to have been given notice of any such meeting irrespective of the actual receipt of the same.
10.
Directors.
A.
Number of Directors. The initial number of Directors has been set by the Articles at three (3) who shall continue in office until the initial meeting of Owners after the expiration of the Declarant Control Period. Thereafter, there shall be five (5)
ors has been set by the Articles at three (3) who shall continue in office until the initial meeting of Owners after the expiration of the Declarant Control Period. Thereafter, there shall be five (5) Directors. Any expansion or subsequent contraction (to not less than three (3)) of the number of Directors shall be effected by an amendment to the Bylaws. Each Director must be an Owner with the exception of the first Board (and any replacement Directors selected by Declarant prior to the first meeting of Owners) designated in the Articles, which Board and any replacement Directors selected by Declarant may remain or be reelected as Directors following the first meeting of Owners. If any Unit is owned by a partnership, corporation, limited liability company, or trust, any officer, partner, trustee, or employee of that Owner shall be eligible to serve as a Director and shall be deemed to be an Owner for purposes of the preceding sentence. Notwithstanding anything contained herein to the contrary, this Section 10 may not be amended without the prior written consent of Declarant, until one hundred twenty (120) days following the conveyance by Declarant of more than seventy-five percent (75%) of the Units.
B. Terms of Directors. At the initial meeting of Owners after the expiration of the Declarant Control Period, two (2) Directors shall be elected for a term of three (3) years, two (2) Directors shall be elected for a term of two (2) years and one (1) Director shall be elected for a term of one (1) year. Thereafter, at the annual meeting of Owners, the Owners shall elect Directors to serve for a term of three (3) years to fill the position of the Director or Directors whose term or terms expired at the time of the annual meeting.
CG:MemorialBend: Declaration051104 22
Directors to serve for a term of three (3) years to fill the position of the Director or Directors whose term or terms expired at the time of the annual meeting.
CG:MemorialBend: Declaration051104 22 OFFICE OF LVD VALEMAN Board.
C.
Election of Officers. The officers of the Association shall be elected by the D. Indemnity of Board. The Association shall indemnify each member of the Board, and each of its officers against expenses and liabilities (including the cost and expenses of defending against any such alleged liability) as and to the extent set forth In the Bylaws. Such rights of indemnification and reimbursement shall not be deemed exclusive of any other rights to which a Director officer, or employee may be entitled by law or under any Bylaw, agreement, vote of members or otherwise.
E. Contracts. The Board may authorize any officer or agent to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Association whether or not a Director or such officer is interested in the transaction (as and to the extent set forth in the Bylaws). Such authority may be general or confined to specific Instances. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Association shall be signed by such officer or agent of the Association and in such manner as shall, from time to time, be determined by resolution of the Board. All funds of the Association shall be deposited, from time to time, to the credit of the Association in such banks, trust companies or other depositories as the Board may select.
11.
Assessments.
A. Regular Monthly Assessments for Common Expenses. There shall be monthly assessments (the "Regular Assessments") of each Owner for payments to the
ositories as the Board may select.
11.
Assessments.
A. Regular Monthly Assessments for Common Expenses. There shall be monthly assessments (the "Regular Assessments") of each Owner for payments to the Common Expense Fund. Both Regular Assessments and Special Assessments shall be computed on the basis of the individual Owner's Percentage of Common Interest Ownership. The Regular Assessments shall commence as to each Owner on the date of delivery of a Deed to the Condominium Unit from the Declarant to the purchaser thereof until the end of the month, which amount shall be paid at the Closing, and Regular Assessments shall be due on the first (1st) day of each subsequent calendar month thereafter, without notice.
B. Common Expenses, Assessments. Each Owner shall be bound and obligated and agrees to pay, as assessments therefor are made during his tenure of ownership, (i) his or her pro-rata part and share of the utilities and the expenses of administration, maintenance, repair, upkeep, protection, replacement, and operation of the Common Elements, (ii) assessments made by the Board of Directors and/or the Association, and (III) any other expenses lawfully agreed to by the Association or the Board, as authorized by the Act, this Declaration or the Bylaws, all of which expenses are included in the term "Common Expenses." The Board of Directors shall be responsible for levying and collecting Special Assessments and Regular Assessments for the Common Expenses.
C. Reserves for Assessments. The Board shall establish an annual budget in advance for each fiscal year and such budget shall project all Common Expenses for the forthcoming year which may be required for the proper operation, management and 23 CG:MemorialBend: Declaration051104 :
e for each fiscal year and such budget shall project all Common Expenses for the forthcoming year which may be required for the proper operation, management and 23 CG:MemorialBend: Declaration051104 : maintenance of the Condominium, together with a reasonable allowance for contingencies and replacement reserves. Such reserves shall include, without limitation, an adequate Replacement Reserve Fund for the maintenance, repair and replacement of those Common Elements that must be replaced on a periodic basis, and shall be payable in regular installments fixed by the Board rather than by Special Assessments.
The Assessments for each year shall be established by the adoption of an annual budget by the Board. Coples of the budget shall be made available to each Owner, although the delivery of a copy of the budget to each Owner shall not affect the liability of any Owner for any existing or future Assessments. Should the Board at any time determine, in the sole discretion of the Board, that the Assessments levied are or may prove to be insufficient to pay the costs of operation and management of the Condominium in any fiscal year (including a deficiency resulting from the nonpayment of Assessments by certain Owners) or in the event of a casualty loss, then the Board shall have the authority at any time and from time to time to levy an additional Assessment in an amount it shall deem to be necessary for that purpose. Upon purchasing a Unit, the Owner will deliver to the Association an amount, which shall be non refundable, equal to two (2) month's Assessments, which will be added to the Replacement Reserve Fund. Provided, however, that payment shall not be required in connection with a sale whether a working capital fund payment has been collected
essments, which will be added to the Replacement Reserve Fund. Provided, however, that payment shall not be required in connection with a sale whether a working capital fund payment has been collected pursuant to Article 18G hereof).
D.1. Special Assessments. Special Assessments may be made by the Board at any time, and from time to time, to meet other needs or requirements of the Association and the Condominium including, but not limited to, costs of capital improvements. However, any Special Assessment of more than twenty-five percent (25%) of the annual budget, whether in one sum or in total, during any calendar year (except for repair or replacement following casualty, as contemplated in Section 14.B.
(iv), or repair or replacement of existing Common Elements, as to which no Owner approval shall be necessary), shall not be levied without the prior approval of more than fifty percent (50%) of the Percentages of Common Interest Ownership of the Owners present in person or by proxy at a special meeting of the Owners called for such purpose. Notice of Special Assessments shall be sent by the Association to each Owner. The due date and method and manner of payment of any Special Assessments shall be determined by the Board, provided, however, that such due date shall in no event be less than thirty (30) days subsequent to such notice.
2. Individual Purpose Assessments. In addition to Regular and Special Assessments as hereinabove provided for, the Association may, at any time, and from time to time, determine, levy and collect assessments against any one or more, but fewer than all, of the Units, for any matters of maintenance of repair, replacement or improvement reasonably applicable only to such Units (or Limited Common Elements
nts against any one or more, but fewer than all, of the Units, for any matters of maintenance of repair, replacement or improvement reasonably applicable only to such Units (or Limited Common Elements appurtenant exclusively to such Units) and not all the Units, or to reimburse the Association for all or portions of the Association's insurance deductible applicable to such unit(s) or to defray the cost of any maintenance and repair caused by the acts, omissions, negligence, or neglect of the Owner. Such individual purpose assessments are not subject to the twenty-five percent (25%) limitation set forth above for Special Assessments and may be levied against individual Units to pay or reimburse the Association for any costs, expenses, fees, and other charges, incurred or reasonably 24 CG:MemorialBend: Declaration051104 anticipated to be incurred by the Association, for maintenance, repair, replacement and improvement, or any other purpose, of or with respect to the Unit against which such Individual purpose assessment is levied which are not applicable to all the Units. The amounts determined, levied and assessed pursuant to this section shall be due and payable as determined by the Association provided that written notice setting forth the amount of such individual purpose assessment for each Unit and the due date(s) for payment thereof shall be given to the Owners of the affected Units not less than thirty (30) days prior to the due date. All individual purpose assessments shall be considered Special Assessments for purposes of the other provisions of this Declaration besides this Section 11.D.
E.
Assessments as Capital Contributions. Assessments levied by the Association against each Owner pursuant to this Section 11 which are expended on
sions of this Declaration besides this Section 11.D.
E.
Assessments as Capital Contributions. Assessments levied by the Association against each Owner pursuant to this Section 11 which are expended on capital expenditures, or which are set aside as a reserve for future repairs of improvements within the Condominium (whether or not such repairs or improvements would otherwise be considered capital in nature pursuant to Section 263 of the Internal Revenue Code of 1986, as amended, the "Code"), shall be treated as capital contributions by such Owner to the Association and shall be shown on the books of the Association as such. The provisions of this Section 11.E. may be amended by a majority of the Board if, in the sole discretion of the Board, such action is necessary to conform to any change in the Code, or any Treasury regulation or ruling promulgated thereunder. Notwithstanding anything contained in this Declaration to the contrary, any amendment to this Section 11.E. duly authorized by the Board shall not require the consent of any Owner or Mortgagee.
F. Computation and Apportionment of Assessments. Except as otherwise provided in this Declaration, all Assessments levied against Owners to cover expenses of the Association and the Condominium shall be computed and apportioned among and paid by Owners in accordance with the Percentage of Common Interest Ownership assigned to such Owner's Unit without increase or decrease for the existence of any rights with respect to the use, existence or lack of existence of Limited Common Elements appurtenant to such Unit. The amount of Common Expenses assessed against each Unit shall be a personal debt and obligation of the Owner of said Unit at the time
of existence of Limited Common Elements appurtenant to such Unit. The amount of Common Expenses assessed against each Unit shall be a personal debt and obligation of the Owner of said Unit at the time the Assessment is made, and the subsequent transfer of his or her ownership of said Unit shall not terminate the outstanding obligation. Assessments shall be due and payable at such times as the Association shall determine, commencing (as to Owners other than Declarant) on the date of delivery of a Deed to a Condominium Unit from Declarant to the purchaser thereof. From and after the termination of the period of Declarant control as set forth in Section 8.H Declarant shall bear all Assessments levied against Units owned by Declarant in accordance with the aggregate Percentage of Common Interest Ownership assigned thereto.
G. Payments by Declarant in Lieu of Assessments. From the date of the initial Assessment until the period of Declarant control terminates, as set forth in Section 8.H the Declarant shall periodically pay to the Association either (i) the amount equal to all Actual Operating Expenses (as hereinafter defined) of the Association, less the Actual Operating Expense portion of the Assessments paid by Owners other than Declarant, or (II) the Common Expense liability allocated to each Unit owned by the Declarant; 25 CG:MemorialBend:Declaration051104 provided, however, Declarant shall be reimbursed upon conveyance of a Unit for those operating expenses that it has prepaid (e.g. Insurance for the benefit of the Unit). For purposes of this Section 11.G., the term "Actual Operating Expenses" shall mean those expenses reasonably necessary for the normal maintenance and operation of the Condominium in order to provide the level and quality of services set forth in the
al Operating Expenses" shall mean those expenses reasonably necessary for the normal maintenance and operation of the Condominium in order to provide the level and quality of services set forth in the budget initially prepared by Declarant and shall include capital expenditures, prepaid items, inventory items or similar expenses to the extent attributable to periods after such fiscal year, or any increase in the level and/or quality of services set forth in such initial budget prepared by Declarant.
H. Default for Failure to Pay Assessments. An Owner shall be in default for failure to pay a Regular Assessment or a Special Assessment if the same, or any part thereof, is not paid to the Association in full on or before ten (10) days after the due date for such payment, and such Owner shall be subject to a late fee as determined by the Board. In addition, Regular Assessments and Special Assessments in default shall bear interest at the lesser of the maximum lawful rate or the rate of eighteen percent (18%) per annum from the date due until paid. Each Owner shall be, and remain, personally liable for the payment of all Regular Assessments and Special Assessments which may be levied against such Owner by the Association in accordance with the Condominium Documents, and any unpaid Regular Assessments and Special Assessments, together with late fees and accrued interest thereon, owed with respect to a Condominium Unit may, at the option of the Association, be collected out of the sale proceeds of such Condominium Unit In accordance with the Act. No successor in title to a Unit shall be deemed to have assumed personal liability for any obligation to pay Regular Assessments or Special Assessments which were due and owing at the
ce with the Act. No successor in title to a Unit shall be deemed to have assumed personal liability for any obligation to pay Regular Assessments or Special Assessments which were due and owing at the time of conveyance to such successor unless such successor agreed to assume such obligation, but this shall not affect or impair the validity of the lien hereinafter provided for.
The personal obligation of an Owner to pay the Assessments levied by the Association (Regular, Special, or otherwise) shall be and is secured by a continuing lien on such Owner's Unit and on the rents and insurance proceeds received by an Owner relating to such Owner's Unit, such continuing lien being created and reserved herein in accordance with Section 82.113 of the Texas Property Code in favor of the Association, and being reserved by the Declarant and granted and assigned to the Association without recourse. The Association's lien for assessments is created by the recordation of this Declaration, which constitutes record notice and perfection of the lien. No other recordation of a lien or notice of a lien shall be required. The lien in favor of the Association may be enforced by power of sale as provided in Section 51.002 of the Texas Property Code, and the expenses incurred in connection therewith, including late fees, interest, costs and attorneys' fees, shall be chargeable to the Owner in default. In no event shall the Association foreclose a lien securing the payment of Assessments consisting solely of fines. Each Owner, by acceptance of the Deed to his or her Condominium Unit, agrees that the Association and its designated agents have the authority, right and power to enforce the above-described liens for Assessments by all
ptance of the Deed to his or her Condominium Unit, agrees that the Association and its designated agents have the authority, right and power to enforce the above-described liens for Assessments by all legal methods available for the enforcement of liens, including nonjudicial foreclosure pursuant to Section 51.002 of the Texas Property Code, as amended. By acceptance of the Deed to his or her Condominium Unit, an Unit Owner grants to the Association a 26 CG:MemorialBend: Declaration051104 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK, HARRIS COUNTY, TEXAS power of sale in connection with the Association's lien. By written resolution, the Board may appoint, from time to time, an officer, agent, trustee, or attorney of the Association to exercise the power of sale on behalf of the Association. The Association shall exercise its power of sale pursuant to Section 51.002 of the Texas Property Code.
Such liens shall be subordinate, secondary and inferior to: (1) assessments, liens and charges In favor of the State of Texas and any political subdivision thereof for taxes that are due and unpaid on such Condominium Unit; (li) any First Mortgage filed for record prior to the date payment of such Assessment for Common Expenses became due and payable provided they become due and payable prior to the date the holder of the First Mortgage acquires title to the Condominium Unit; and (III) all liens securing any loan (including loans made by Declarant) made to a purchaser for any part of the purchase price of any Unit when such Unit is purchased from Declarant. The Board or Managing Agent may, but shall not be obligated to, elect to prepare and execute a notice of assessment (a "Notice of Assessment") which sets forth the amount of the
chased from Declarant. The Board or Managing Agent may, but shall not be obligated to, elect to prepare and execute a notice of assessment (a "Notice of Assessment") which sets forth the amount of the unpaid indebtedness, the name of the Owner, and a description of the Condominium Unit, and may record the Notice of Assessment in the Real Property Records of Harris County, Texas. Notice of an unpaid Regular Assessment or Special Assessment and such lien in favor of the Association, may be recorded in the Official Records of Harris County, Texas.
The lien for Common Expenses herein provided for may be enforced by the Association by non-judicial foreclosure of and on the Condominium Unit owned by the defaulting Owner, without prejudice and subject to the aforesaid prior and superlor liens, In the same manner as nonjudicial foreclosures under mortgages on real property located in the State of Texas; provided, however, at any time prior to the foreclosure sale, the Owner of the Condominium Unit to be sold at such foreclosure sale may avoid foreclosure by paying all amounts due to the Association. No foreclosure suit or sale thereunder shall affect or impair any of the prior liens above mentioned. The Board of Directors or any person authorized by it, acting on behalf of the Association, shall have power to bid on the Condominium Unit being foreclosed at the foreclosure sale, and to acquire, hold, lease, mortgage or convey the same on behalf of the Association. All funds realized from any foreclosure sale shall be applied first to the costs and expenses of filing and prosecuting the foreclosure, including all trustee's and attorneys' fees, and then towards payment of the indebtedness, and the remainder, if any, shall be paid
to the costs and expenses of filing and prosecuting the foreclosure, including all trustee's and attorneys' fees, and then towards payment of the indebtedness, and the remainder, if any, shall be paid over to the Owner or Owners as their interest may appear. Upon the foreclosure by the Association of the lien provided for herein, the Owner shall be deemed to constitute a tenant at sufferance of the purchaser of the Unit at such foreclosure sale, and such purchaser shall be entitled to pursue the eviction of such Owner by virtue of forcible entry and detainer proceedings if such Owner fails or refuses to vacate the Unit upon demand. In the event the proceeds realized from the foreclosure sale, applied as aforesaid, shall be insufficient to pay off and discharge the whole amount of the assessments sued on, then the purchaser acquiring title to such Condominium Unit at such foreclosure sale, whoever he or she may be, other than the Owner sued, shall not be liable for the deficiency, but such deficiency shall be deemed a Common Expense, collectible from all Owners, including the purchaser at the foreclosure sale, on a prorata basis as in the case of other Common Expenses. The defaulting Owner shall remain personally liable to the Association, on behalf of the other Owners paying such deficiency, and the Association may pursue recovery of such deficiencies from the 27 CG:MemorialBend: Declaration051104 defaulting Owner.
I.
Right of Redemption.
(!)
(ii) Association as Purchaser: The Owner of a Condominium Unit purchased by the Association at the foreclosure sale may redeem the Condominium Unit within ninety (90) days after the date of the foreclosure sale in accordance with Section 82.113(g) of the Act, or same may be amended or re-codified from time to time.
may redeem the Condominium Unit within ninety (90) days after the date of the foreclosure sale in accordance with Section 82.113(g) of the Act, or same may be amended or re-codified from time to time.
Third party as Purchaser: Further provided, and to the extent not expressly prohibited by applicable law, the Owner of a Condominium Unit may redeem the Condominium Unit within ninety (90) days of the foreclosure sale irrespective whether the purchaser was the Association or a third party. To redeem the Unit purchased at the foreclosure sale by a person other than the Association, the Unit Owner: (a) must pay to the Association: all amounts due the Association at the time of the foreclosure sale, interest from the date of foreclosure to the date of redemption at the rate provided in this Declaration for delinquent assessments, reasonable attorneys fees and costs incurred by the Association in foreclosing the lien, and any unpaid assessments levied against the Unit by the Association after the foreclosure sale to the date of redemption; and (b) must pay to the person who purchased the Unit at the foreclosure sale: any assessments levied against the property by the Association after the date of foreclosure sale and paid by the purchaser; the purchase price paid by the purchaser at the foreclosure sale; and any reasonable costs incurred by the purchaser at the foreclosure sale as Owner of the Unit until the date of redemption, including the costs of any ad valorem taxes paid by such purchaser due on the Unit (but not taxes not yet due and payable), any debt service (whether principal or interest or both) paid by such purchaser on any liens or encumbrances in existence as of the date of such foreclosure, maintenance and leasing. If a Unit Owner redeems
bt service (whether principal or interest or both) paid by such purchaser on any liens or encumbrances in existence as of the date of such foreclosure, maintenance and leasing. If a Unit Owner redeems the Unit under this paragraph, the purchaser of the Unit at foreclosure shall immediately execute and deliver to the Owner a deed transferring the property to the redeeming Unit Owner, free and clear of any encumbrances other than those which existed as of the date such purchaser purchased the Unit or those created by the Unit Owner. If a purchaser fails to comply with this paragraph, the Unit Owner may file a cause of action against the purchaser and may recover reasonable attorneys fees from the purchaser if the Unit Owner is the previously party in the action. A Unit that is redeemed remains subject to all liens and encumbrances on the Unit before foreclosure. Any lease entered into by the purchaser of a Unit at a sale foregoing an assessed lien is subject to the right of redemption provided by this Section and the Unit Owner's right to re-occupy the Unit immediately after the redemption. A purchaser of a Unit at such foreclosure sale may not transfer ownership of the Unit during the redemption period to a person other than the redeeming Owner.
CG:MemorialBend: Declaration051104 28 J. Additional Remedies. The Association may, in addition to its rights under Section 11.11. above and the Act, enforce collection of delinquent Assessments by suit at law for a money judgment, and the expenses incurred in collecting unpaid Assessments, including interest, costs and attorneys' fees shall be chargeable to the Owner in default. The Board may resolve that an Owner in default shall not be entitled
curred in collecting unpaid Assessments, including interest, costs and attorneys' fees shall be chargeable to the Owner in default. The Board may resolve that an Owner in default shall not be entitled to vote at any meeting of the Association so long as such default is in existence, unless otherwise provided in the Act.
K. No Exemptions From Liability for Common Expenses. No Owner may be exempt from liability for his or her contribution toward the Common Expenses of the Association and the Condominium by waiver of the use or enjoyment of any of the Common Elements or any part thereof, by reason of any grievance against the Association, Declarant, or any other Owner, or by the abandonment of such Owner's Condominium Unit or his or her interest therein.
L. Statement of Assessments. The Association or its representative shall, upon payment to the Association of a reasonable fee as set by the Board from time to time, furnish to any prospective purchaser or Mortgagee of any Unit, at the written request of the Owner, a written statement as to the amount of the Assessments for Common Expense which have become due and are unpaid up to a given date with respect to the Unit to be sold or mortgaged; and, in the case of sale, the purchaser shall not be liable nor shall the Unit purchased be subject to any lien for any unpaid Assessment which has become due and is not shown on such statement for the period of time covered thereby; however, the selling Owner shall remain liable for same and in case of his or her failure or refusal to pay, then the same shall be collectible from all other Owners on a pro-rata basis in proportion to their ownership interest in the Common Elements, and they shall have recourse against the selling Owner; but in the
same shall be collectible from all other Owners on a pro-rata basis in proportion to their ownership interest in the Common Elements, and they shall have recourse against the selling Owner; but in the event of a Mortgagee, then the unpaid assessments not shown on the statement for the period of time covered thereby shall remain the obligation of the Owner mortgaging his or her Unit, but the Assessment liens securing same as provided for in this Declaration shall be and remain inferior and secondary to the mortgage and liens held by the Mortgagee to whom or for whose information the statement was furnished.
M. Common Expense Fund. The Common Expense Fund shall be based upon the aggregate sum which the Board shall from time to time determine is to be paid by all of the Owners (including Declarant) to pay the estimated Common Expenses.
N. Failure to Provide Notice of Regular Assessments. In the event of a failure of the Board to issue the annual notice setting forth the amount of the Regular Assessments, the Regular Assessments then in effect shall continue until the Board issues a new notice of Regular Assessments, and said failure shall not be deemed a waiver of any of the provisions of this Section 11 nor shall it operate to release any Owner from his or her obligations to pay the Assessments provided for hereunder.
0.
Notice to Owners. Notwithstanding anything to the contrary contained in this Declaration, before the Association may charge an Owner for property damage for which such Owner is liable, or levy a fine for violation of this Declaration, the Bylaws or Rules and Regulations, the Association shall give such Owner a written notice that: 29 CG:MemorialBend: Declaration051104 (i) (II) (iii) describes the violation or property damage and states the amount
ules and Regulations, the Association shall give such Owner a written notice that: 29 CG:MemorialBend: Declaration051104 (i) (II) (iii) describes the violation or property damage and states the amount of the proposed fine or damage charge; states that not later than the 30th day after the date of the notice, the Owner may request a hearing before the Board to contest the fine or damage charge; and allows the Owner a reasonable time, by a specified date, to cure the violation and avoid the fine, unless the Owner was given notice and a reasonable opportunity to cure a similar violation within the preceding year.
The above described notice may be given by the Association delivering a copy of the notice to an occupant of the Unit. In addition, the Association shall give notice of a levied fine or damage charges to the Owner within thirty (30) days after the date of levy.
12. Obligations of Owners and Owner Action. Without limiting the obligations of an Owner, each Owner shall: (i) pay all Assessments, late fees, Interest, and other charges properly levied by the Association against the Owner or the Owner's Unit, and shall pay all Regular Assessments without demand by the Association; (II) comply with this Declaration, the Bylaws, the Rules and Regulations, and any amendments thereto; (ii) pay for damage to the Condominium caused by the negligence or willful misconduct of the Owner, an occupant of the Owner's Unit, or the Owner's or occupant's family, guests, employees, contractors, agents or invitees; and (iv) be liable to the Association for violations of the Declaration, the Bylaws, the Rules and Regulations, and any amendments thereto, by the Owner, an occupant of the Owner's Unit, or the Owner's or
(iv) be liable to the Association for violations of the Declaration, the Bylaws, the Rules and Regulations, and any amendments thereto, by the Owner, an occupant of the Owner's Unit, or the Owner's or occupant's family, guests, employees, agents, or invitees, and for costs incurred by the Association to obtain compliance, including attorneys' fees, whether or not suit is filed.
Without limiting the other legal rights of any Owner or the Association, legal action may be brought by an Owner or the Association, in its sole discretion, on behalf of two (2) or more Owners as their respective interests may appear with respect to any cause of action relating to the Common Elements appurtenant to more than one Condominium Unit. All costs incurred by the Association as a result of such legal action shall be borne in their entirety by the Association unless or until such costs are recovered.
13.
Insurance.
A. Owner's Insurance. Each Owner shall be responsible, at his or her cost and expense, for his or her own personal insurance on the contents of his or her Unit (specifically including glass and windows appurtenant to the Unit) and his or her additions and improvements thereto, and his or her decorations and furnishings and personal property therein to the extent not covered by the insurance obtained by the Association, as well as his or her personal liability to the extent not covered by the liability insurance for all of the Owners which may be obtained by the Association as a Common Expense.
CG:MemorialBend:Declaration051104 30 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK, HARRIS COUNTY B. Association's Insurance. The Association shall purchase and maintain policies of insurance and fidelity bond coverage in accordance with the requirements of
Y B. KAUFMAN COUNTY CLERK, HARRIS COUNTY B. Association's Insurance. The Association shall purchase and maintain policies of insurance and fidelity bond coverage in accordance with the requirements of the Act and the requirements of the Federal National Mortgage Association, as they may be amended from time to time. To the extent not inconsistent with the foregoing, the Association shall obtain and continuously keep in effect, to the extent reasonably available, the Master Policy of fire and extended coverage, vandalism, malicious mischief and liability insurance, and, if required by law or deemed necessary or desirable by the Board, worker's compensation Insurance, with respect to the Condominium and the Association's administration thereof in accordance with the following provisions: (i) (II) Parties Covered. The Master Policy shall be purchased by the Association for the benefit of the Association, Managing Agent (if any), and each and every Owner and their respective Mortgagees, as their interests may appear (subject to the provisions of the Condominium Documents and the Act), the cost of which shall be a Common Expense, and provision shall be made for the issuance of appropriate mortgagee endorsements to Mortgagees.
Coverage.
(a) (b) To the extent such insurance is reasonably available, the Building and all Common Elements shall be insured against fire, vandalism and malicious mischief, and other perils covered by a standard extended coverage endorsement (with appropriate endorsement to cover fixtures, Installations or additions comprising a part of the Building within the unfinished interior surfaces of the perimeter walls, floors and ceilings of individual Units initially installed, or replacements thereof, in accordance with the original plans
the Building within the unfinished interior surfaces of the perimeter walls, floors and ceilings of individual Units initially installed, or replacements thereof, in accordance with the original plans and specifications for the Condominium, specifically referring to and including the Interior walls of each Unit), in an amount equal to the replacement cost thereof, excluding the costs of excavations, foundations and footings, as determined annually by the Board. The Board may obtain an appraisal in determining insurable value and the cost thereof shall be an expense of the Association. The Association may, in its sole discretion, elect to carry insurance to cover such other perils as from time to time shall be customarily covered with respect to buildings and improvements similar in construction, location and use.
The Association shall also maintain, to the extent reasonably available, commercial general liability insurance, including medical payments insurance, in an amount determined by the Board of Directors, covering all occurrences commonly insured against for death, bodily injury, and property 31 CG:MemorialBend: Declaration051104 (III) (iv) (c) (d) (e) damage arising out of or in connection with the use, ownership or maintenance of the Common Elements and shall contain, if available, cross-liability endorsements or appropriate provisions for the benefit of Owners, individually and as a group, Directors, and Managing Agent (if any) Insuring each insured against liability to each other insured.
If the property Insurance and/or the liability Insurance described above is not reasonably available, the Association shall cause notice of that fact to be delivered or mailed to all Owners and Mortgagees.
The property and liability insurance policies obtained by the
above is not reasonably available, the Association shall cause notice of that fact to be delivered or mailed to all Owners and Mortgagees.
The property and liability insurance policies obtained by the Association shall provide that: (i) each Owner is an Insured Person under the policy with respect to liability arising out of such Owner's Percentage of Common Interest Ownership or membership in the Association; (ii) the insurer walves its right to subrogation under the policy against an Owner or the Association; (III) no action or omission of an Owner, unless within the scope of the Owner's authority on behalf of the Association, will void the policy or be a condition to recovery under the policy; (iv) if, at the time of a loss under the policy, there is other insurance in the name of an Owner covering the same property covered by the policy, the Association's policy shall provide the primary insurance; and (v) the insurer issuing the policy may not cancel or refuse to renew the policy less than thirty (30) days after written notice of the proposed cancellation or non-renewal has been mailed to the Association.
The Association shall also carry, if available, fidelity coverage against dishonest acts on the part of Directors, Owners, the Managing Agent (if any), employees (if any), and any other person (including volunteers, with an appropriate endorsement if required) handling funds belonging to or administered by the Association. Such fidelity coverage shall be in the amount of not less than $100,000.
Premiums. All premiums upon insurance purchased by the Association shall be included in the Association's budget in accordance with Section 11.C. hereof, except that the amount of increase over such premiums occasioned by the use, misuse,
purchased by the Association shall be included in the Association's budget in accordance with Section 11.C. hereof, except that the amount of increase over such premiums occasioned by the use, misuse, occupancy or abandonment of a Unit or the Common Elements by an Owner shall be assessed only against such Owner.
Proceeds of Insurance. Proceeds of all insurance policies owned by the Association shall be payable to the Association, shall be deposited by the Association in a federally insured bank, shall be 32 CG:MemorialBand:Declaration051104 (v) held in a separate account and shall be distributed to the Association, Owners and their Mortgagees (subject to the provisions of the Condominium Documents and the Act) as their interests may appear; provided, however, whenever repair or reconstruction of the Condominium shall be required as provided in Section 14 hereof, the proceeds of any insurance received by the Association as a result of any loss requiring repair or reconstruction under this Declaration shall be administered by the Association and shall be applied to such repair or reconstruction.
Appointment of Attorney-in-Fact. Each Owner, by acceptance of a deed or other instrument of conveyance from Declarant or from any Owner or grantor resulting in ownership of a Condominium Unit, shall be deemed to appoint the Association as his or her true and lawful attorney-in-fact (which shall be deemed to be an irrevocable power of attorney coupled with an interest and not voidable due to the incapacity or disability of an Owner) to act in connection with all matters concerning the maintenance of the Master Policy and the destruction, repair or obsolescence of the Condominium, in whole or in part. Without limiting the generality of
t in connection with all matters concerning the maintenance of the Master Policy and the destruction, repair or obsolescence of the Condominium, in whole or in part. Without limiting the generality of the foregoing, the Association, by and through its President or Vice President, shall have full power and authority to purchase and maintain such insurance, to collect and remit the premiums therefor, to collect proceeds, to institute and prosecute litigation or arbitration, to pay all costs associated with its activities as Common Expenses (to the extent the proceeds received from such insurance are not adequate to pay such costs), to administer the distribution of such proceeds in connection with any reconstruction or repair, to distribute any remaining proceeds to Owners and their Mortgagees (subject to the provisions of the Condominium Documents and the Act) as their interests may appear, to execute releases of liability, and to execute all documents and to do all things on behalf of the Owners and the Condominium as shall be necessary or convenient to the accomplishment of the foregoing; and any insurer may deal exclusively with the Association in regard to such matters (other than exercising any voting rights in determining whether to repair or reconstruct). The Association shall not be responsible for procurement or maintenance of any insurance covering the contents or the interior of any Unit (except to the extent available by endorsement as herein provided) or covering the liability of any Owner for occurrences not caused by or connected with the Association's operation, maintenance or use of the Condominium.
(vi) Priority as to Proceeds. Notwithstanding anything contained herein to the contrary, no provision contained herein or in the
ith the Association's operation, maintenance or use of the Condominium.
(vi) Priority as to Proceeds. Notwithstanding anything contained herein to the contrary, no provision contained herein or in the Condominium Documents shall give an Owner or any other party priority over any Mortgagee with respect to the distribution of proceeds of insurance to which such Owner or other party would 33 CG:MemorialBend:Declaration051104 14.
(vii) not otherwise be entitled.
Waiver of Subrogation. The Association and the Owners shall use their best efforts to see that all insurance carried by an Owner or the Association shall contain appropriate provisions whereby the insurer waives its right of subrogation as to any claims against Owners or the Association and the respective tenants, servants, agents, and guests of Owners or the Association, as the case may be, and the Association and the Owners, by their acceptance or recordation of a Deed, hereby walve any and all claims and rights of subrogation against each other to the extent of any damage or Injury for which insurance is required to be maintained under this Declaration.
(viii) Deductible. In certain circumstances, an Owner may be liable for payment of all or portion of the deductible as may be determined in accordance with this Declaration, the Rules, or policies adopted by the Board.
Termination of Condominium; Reconstruction or Repair; Condemnation A.
Termination of Condominium Project.
(i) The Condominium shall continue indefinitely unless and until it is terminated as provided in this Declaration or by agreement of the Owners holding at least eighty percent (80%) of the votes in the Association (other than those held by the Declarant, or successor to Declarant), and First Mortgagees holding eighty percent (80%)
the Owners holding at least eighty percent (80%) of the votes in the Association (other than those held by the Declarant, or successor to Declarant), and First Mortgagees holding eighty percent (80%) of the First Mortgages (based on one vote for each First Mortgage held). The agreement of the Owners and First Mortgagees to terminate (and, if the Condominium is to be sold, the terms of sale) must be evidenced by their execution of a Termination Agreement (or a ratification thereof) In the same manner as a deed, by the requisite number of Owners and First Mortgagees. The Termination Agreement and all ratification thereof must be recorded in the Real Property Records of the County of Harris and will be effective only upon recordation. After the recording of the Termination Agreement, the Condominium may be sold, and the Association, on behalf of the Owners, may contract for such sale, on the terms set forth in the Termination Notice. The Association has all power necessary and appropriate to affect the sale and until the sale has concluded and the proceeds have been distributed, the Association continues in existence with all the powers it had before termination. Proceeds of the sale must be distributed to the Owners and Mortgagees as their interest may appear, in accordance with the provisions set forth below. Unless otherwise specified in the Termination Agreement, until title to the Condominium has been transferred pursuant to a sale, each Owner and its successors in 34 CG:MemorialBend: Declaration051104 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK, HARRIS COUNTY, 1 (ii) (iii) interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted the Unit. During the period of
OF BEVERLY B. KAUFMAN COUNTY CLERK, HARRIS COUNTY, 1 (ii) (iii) interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted the Unit. During the period of that occupancy, each Owner and the Owner's successors in interest remain liable for all assessments and other obligations imposed upon the Owners by the Act or this Declaration. Following termination of the Condominium, the proceeds of any sale of real estate, together with any insurance proceeds (if the termination occurs in connection with a damage or destruction) and the assets of the Association are held by the Association as trustee for the Owners and Mortgagees as their interest may appear. If the Condominium is not to be sold following termination, on termination title to the Condominium vests in the Owners as tenants in common in proportion to their respective interests, and liens on the Units shift accordingly. While the tenancy in common exists, an Owner and the Owner's successors in Interest have an exclusive right to occupy the portion of the Condominium that formerly constituted the Owner's Unit.
The respective interests of the Owners are as follows: (a) (b) except as provided in subsection (b) immediately below, the respective interests of the Owners are the fair market values of their Units, interest in the General Common Elements, and any Limited Common Elements before termination, as determined by one or more independent appraisers selected by the Association. The decision of the independent appraisers shall be distributed to the Owners and becomes final unless disapproved within 30 days after distribution by Owners holding at least 25% of the total votes in the Association. The proportion of any Owner's Interest to that
o the Owners and becomes final unless disapproved within 30 days after distribution by Owners holding at least 25% of the total votes in the Association. The proportion of any Owner's Interest to that of all Owners is determined by dividing the fair market value of that Owner's Condominium Unit and Common Elements interest by the total fair market values of all Condominium Units and Common Elements; if any Unit or any Limited Common Element is destroyed to the extent that an appraisal of the fair market value thereof prior to destruction cannot be made, the proportionate interest of each Owner shall be such Owner's Common Interest Ownership immediately before termination.
The proceeds available for distribution to the holders of interests in the Condominium Units after a termination shall be allocated to each Condominium Unit in accordance with its proportionate interest as provided above and each Condominium Unit's share of such proceeds shall be deposited into a separate account Identified by the Condominium Unit designation and the name of the Owner and First Mortgagee thereof. From each separate account, the 35 CG:MemorialBend:Declaration051104 B.
Association, as attorney-in-fact, shall forthwith use and disburse the total amount of such account, without contribution from one account to another, toward payment of the liens encumbering the Condominium Unit represented by such separate account, in the following order: (a) for the payment of taxes and special assessment liens in favor of any assessing entity; (b) for the payment of any Association common expense assessments which take priority over the lien of a First Mortgage pursuant to Section 11.H. of this Declaration and the Act; (c) for the payment of the lien of any First Mortgage; (d) for the payment of unpaid
ts which take priority over the lien of a First Mortgage pursuant to Section 11.H. of this Declaration and the Act; (c) for the payment of the lien of any First Mortgage; (d) for the payment of unpaid Association common expense Assessments, other assessments, charges and fees, and all cost, expenses and fees Incurred by the Association, including customary expenses of sale; (e) for payment of junior liens and encumbrances in the order of and to the extent of their priority; and (f) the balance remaining, If any, shall be paid to the Owner(s) of the Condominium Unit.
Damage or Destruction. "Repair and Reconstruction" of the improvements, as used in the succeeding subsections, means restoring the improvement(s) to substantially the same condition in which they existed prior to their damage or destruction, with each Condominium Unit and the General and Limited Common Elements having substantially the same vertical and horizontal boundaries as before, and all improvements being reconstructed or repaired in substantial conformance with the Condominium's original architectural plan and scheme, to the extent then reasonably and economically feasible. The proceeds of any insurance collected shall be available to the Association for the purpose of repair, reconstruction, restoration, or replacement, in accordance with the provisions hereinafter set forth: (i) Any loss covered by the property insurance policy maintained by the Association must be adjusted with the Association, and the Insurance proceeds will be paid to the Association or an insurance trustee designated for such purpose and not to the Mortgagee. The Insurance trustee or the Association shall hold such insurance proceeds in trust for the Owners and Mortgagee as their interest
urance trustee designated for such purpose and not to the Mortgagee. The Insurance trustee or the Association shall hold such insurance proceeds in trust for the Owners and Mortgagee as their interest may appear. Subject to the provisions of subsection (II) immediately below, the proceeds must be disbursed first to the repair or restoration of the damaged property, and then to the Association. Owners and Mortgagee shall not be entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the property has been completely repaired or restored or the Condominium is terminated in accordance with Section 14.A, in either of which events the surplus shall be distributed as provided in Section 14.A.ill. The Association may adopt and establish written nondiscriminatory policies and procedures relating to the submission of claims, and such other matters of claims adjustment. The Association shall have full authority, right and power as attorney-in-fact to cause the repair 36 CG:MemorialBend: Declaration051104 (ii) (III) (iv) (v) and reconstruction of the improvements. Assessments for common expenses shall not be abated during the period of insurance adjustments and repair and reconstruction.
Any portion of the Condominium for which insurance is required under this Declaration must be repaired or replaced promptly by the Association unless (a) the Condominium is terminated in accordance with Section 14.A., in which case the provisions of that Section apply; or (b) repair or replacement would be illegal under any state or local statute or ordinance governing health or safety.
Estimates. As soon as possible after the occurrence of a casualty which causes damage to any part of the Condominium for which
under any state or local statute or ordinance governing health or safety.
Estimates. As soon as possible after the occurrence of a casualty which causes damage to any part of the Condominium for which the Association has insurance coverage, the Association shall obtain reliable and detailed cost estimates of the following: (a) The cost of restoring all damage caused by the casualty to the Common Elements (collectively, the "Common Element Costs"); and (b) The cost of restoring that part of the damage caused by the casualty to each Unit which is or would be covered by insurance held by the Association, without regard to the policy limits of such insurance (collectively, the "Unit Costs").
If the insurance proceeds are insufficient to repair and reconstruct the improvements, such damage or destruction shall be promptly repaired and reconstructed by the Association as attorney-in-fact, using the proceeds of Insurance and the proceeds of a Special Assessment. Such Special Assessment (to be known as an "Allocation Assessment") shall be assessed against all Condominium Units in accordance with Section II.D. hereof, The Association shall have full authority, right and power, as attorneyIn-fact, to cause the repair, replacement or restoration of the improvements, using all of the Insurance proceeds for such purpose, notwithstanding the failure of an Owner to pay the aforesaid Allocation Assessment. Notwithstanding the foregoing, the Association shall have authority to assess negligent Unit Owners causing any loss all deductibles paid by the Association and any amount by which the insurance proceeds are insufficient to pay the costs of repair and reconstruction, as further set forth in the second sentence of Section 14.B.(v).
paid by the Association and any amount by which the insurance proceeds are insufficient to pay the costs of repair and reconstruction, as further set forth in the second sentence of Section 14.B.(v).
Owner's Responsibilities. Each Owner shall be responsible for the reconstruction, repair or replacement of the interior of his or her Unit, including, but not limited to, furniture, furnishings, floor coverings, wall coverings, window shades, draperies, interior walls, 37 CG:MemorialBend: Declaration051104 decorative light fixtures, all appliances located therein, and other items of personal property within the Unit, unless such item(s) are covered by the Association's Insurance policy. Each Owner shall also be responsible for the costs not otherwise covered by Insurance carried by such Owner or the Association for any reconstruction, repair or replacement of any portion of the Condominium necessitated by his or her negligence or misuse, or the negligence or misuse by his or her family, tenants, guests, agents, servants, employees or contractors, as determined by the Board, in its sole discretion (whether or not a Special Assessment is made against other Owners initially to cover such costs). In the event damage to all or any part of the interior of an Owner's Unit is covered by insurance held by the Association for the benefit of such Owner, then such Owner shall, subject to the provisions of subsection (iv) immediately above, begin construction or repair of such damage upon receipt of the insurance proceeds or any portion thereof from the Association, subject to the rights of the Association and such Unit's First Mortgagee to supervise, approve or disapprove such reconstruction or repair during the course thereof. In the event damage to all or any part of the interior of
f the Association and such Unit's First Mortgagee to supervise, approve or disapprove such reconstruction or repair during the course thereof. In the event damage to all or any part of the interior of any Owner's Unit is not covered by Insurance held by the Association for the benefit of such Owner, then such Owner shall, subject to the provisions of subsection (iv) immediately above, begin reconstruction or repair of his Unit within sixty (60) days after the date of such damage, subject to the right of the Association to supervise, approve or disapprove such reconstruction or repair during the course thereof.
C. Obsolescence. Owners holding at least eighty percent (80%) of the votes In the Association (other than those held by the Declarant, or any successor to the Declarant) or First Mortgagees holding eighty percent (80%) of the First Mortgages (based on one vote for each First Mortgage held) may agree that the Common Elements are obsolete and adopt a plan for the renewal and reconstruction thereof. If a plan for renewal or reconstruction is adopted, notice of such plan shall be recorded in Real Property Records of Harris County, Texas, and the expenses of renewal and reconstruction shall be payable by all of the Owners as a Common Expense, whether or not they have previously consented to the plan of renewal and reconstruction. The aforesaid Common Expense assessment for the renewal and reconstruction of the Common Elements shall be a debt of each Owner and a lien on its Condominium Unit, and may be enforced and collected as provided in Section 11 hereof.
D. Condemnation. If at any time during the continuance of condominium ownership pursuant to this Declaration, all or any part of the Condominium shall be
nd collected as provided in Section 11 hereof.
D. Condemnation. If at any time during the continuance of condominium ownership pursuant to this Declaration, all or any part of the Condominium shall be taken or condemned by any public authority, or sold or otherwise disposed of in lieu of or in avoidance thereof, the provisions of this Section 14.D. shall apply: (i) All compensation, damages or other proceeds therefrom, the sum of which is hereafter called the "Condemnation Award" shall be CG:MemorialBend: Declaration051104 38 OFFIC BEVERLY B.
COUNTY CLERK, HAR CONDOMINIUM RECOR (11) (II) payable to the Association.
In the event that the entire Condominium is taken, condemned, sold or otherwise disposed of in lieu of or in avoidance thereof, the condominium ownership pursuant to this Declaration shall terminate. The Condemnation Award shall be apportioned among the Owners by the Board the same as if there had been a termination of the Condominium under Section 14.A.; provided, however, that if a standard different from the value of the Condominium as a whole is employed as the measure of the Condemnation Award in the negotiation, judicial decree or otherwise, then in determining such shares the same standard shall be employed to the extent it is relevant and applicable. The Association shall, as soon as practicable, determine the share of the Condemnation Award to which each Owner is entitled. Such shares shall be paid into separate accounts and disbursed, as soon as practicable, in the same manner as provided in Section 14.A.
hereof.
Subject to the rights of First Mortgagees provided in this Declaration, in the event that less than the entire Condominium is taken, condemned, sold or otherwise disposed of in lieu of or in
.
hereof.
Subject to the rights of First Mortgagees provided in this Declaration, in the event that less than the entire Condominium is taken, condemned, sold or otherwise disposed of in lieu of or in avoidance thereof, the condominium ownership hereunder shall not terminate. Each Owner shall be entitled to a share of the Condemnation Award, to be determined in the following manner: As soon as practicable, the Association shall reasonably, and in good faith, allocate the Condemnation Award between compensation, damages or other proceeds and shall apportion the amounts so allocated among the Owners, as follows: (a) the total amount allocated to taking of or injury to the Common Elements (less any portion used for restoration or repair of the remaining Common Elements) shall be apportioned among the Owners in accordance with the Common Interest Ownership assigned to each Unit (but the portion of the award attributable to the acquisition of a Limited Common Element shall be equally divided among the Owners of the Units to which that Limited Common Element was allocated at the time of acquisition); (b) the total amount allocated to severance damages shall be apportioned to those Units which were not taken or condemned and which in the sole judgment of the Association were damaged; (ii) the respective amounts allocated to the taking of or damage to a particular Unit, and to the improvements an Owner has made within his Condominium Unit, shall be apportioned to the particular Unit Involved; and (iv) the total amount allocated to consequential damages and any other takings or injuries shall be apportioned as the Association determines to be equitable in the circumstances, or as determined by the judicial decree. Notwithstanding anything to the contrary
any other takings or injuries shall be apportioned as the Association determines to be equitable in the circumstances, or as determined by the judicial decree. Notwithstanding anything to the contrary contained in this Declaration except the preceding sentence, the CG:MemorialBend: Declaration051104 39 (iv) (v) (vi) allocation of the Condemnation Award to each affected Unit shall be based on the comparative values of the affected Units as they existed immediately prior to the condemnation, using such evidence of the appraised values as is then available, including, but not limited to, recent MAI appraisals of the affected property or comparable property. If the allocation of the Condemnation Award is already established in negotiations, judicial decree or otherwise, then in allocating the Condemnation Award, the Association shall employ such allocation to the extent it is relevant and applicable.
Apportioned proceeds shall be disbursed, as soon as practicable, in the same manner as provided in Section 14.B. hereof.
Any reconstruction and repair necessitated by condemnation shall be governed by the procedures specified in Section 14.B. hereof.
If a Unit is acquired by eminent domain or part of a Unit is acquired by eminent domain leaving the Owner with a remnant which may not practically or lawfully be used for any purpose permitted by the Declaration, the Owner(s) thereof shall automatically cease to be a member(s) of the Association, shall cease to hold any right, title or Interest in the remaining Common Elements, and shall execute any and all documents necessary to accomplish the same and the award will include compensation to the Owner for that Unit and its undivided interest in the Common Elements whether or not any
l execute any and all documents necessary to accomplish the same and the award will include compensation to the Owner for that Unit and its undivided interest in the Common Elements whether or not any Common Elements are acquired. The Condemnation Award as to each such completely taken Condominium Unit shall be paid into a separate account and disbursed, as soon as practicable, to the Owner of such Condominium Unit and its First Mortgagee In the same manner as provided in Section 14.A. hereof. Upon acquisition, unless the decree otherwise provides, that Unit's undivided interest in the Common Elements shall be reallocated to the remaining Units in proportion to the respective Common Elements of those Units before the taking. Any remnant of a Unit remaining after a part of a Unit is taken pursuant to this subsection (v) is thereafter a Common Element.
Except as provided in subsection (v) above, if part of a Unit is.
acquired by eminent domain, the award must compensate the Owner for the reduction in value of the Unit and its undivided interest In the Common Elements whether or not any Common Elements are acquired. Upon acquisition, unless the decree otherwise provides, the Unit's interest in the Common Elements shall be reduced and determined by dividing the square footage of the remainder of the Unit by the total square footage of all Units in the Condominium after the taking, but the Unit's vote and share of assessments for common expenses shall remain the same.
(vil) The reallocation of Common Elements pursuant to Section 14D.
40 CG:MemorialBend: Declaration051104 shall be confirmed by an amendment to this Declaration prepared, executed and recorded by the Association.
E. Notice to First Mortgagees. In the event of substantial damage to or
nd: Declaration051104 shall be confirmed by an amendment to this Declaration prepared, executed and recorded by the Association.
E. Notice to First Mortgagees. In the event of substantial damage to or destruction of any Unit or any part of the Common Elements, any First Mortgagee shall be entitled to timely written notice of any such damage or destruction at the address appearing in the Record of Mortgages, and no provision hereof shall entitle an Owner or any other party to the priority granted to such First Mortgagee with respect to the distribution of any insurance proceeds attributable thereto. In the event any Unit or portion thereof, or the Common Elements or any portion thereof, is made the subject matter of any condemnation or eminent domain proceedings or is otherwise sought to be acquired by a condemning authority, any First Mortgagee shall be entitled to timely written notice of any such proceeding or proposed acquisition at the address appearing in the Record of Mortgages, and no provision hereof shall entitle an Owner or any other party to the priority granted to such First Mortgagee with respect to the distribution of the proceeds of any award or settlement attributable thereto.
15. Restrictions on Use. The Board may and is authorized to, from time to time, institute, invoke, amend, and terminate nondiscriminatory Rules and Regulations which the Board may deem necessary or convenient to insure compliance with the general guidelines of this Declaration.
In that regard, the following restrictions, covenants and conditions are placed upon each Unit in the Condominium as a general plan or scheme of restrictions for the benefit of each Unit.
A.
Permitted Uses of Units.
(i) Residential Use. After the initial sale or transfer by Declarant, the
Unit in the Condominium as a general plan or scheme of restrictions for the benefit of each Unit.
A.
Permitted Uses of Units.
(i) Residential Use. After the initial sale or transfer by Declarant, the primary use of each Unit shall be single-family residence purposes, with occupancy not to exceed two (2) adult persons per bedroom, unless higher occupancy is mandated by public agencies that enforce compliance with the familial status protection of the Fair Housing Act; provided, however, the Owner, Owners or tenants of a Unit may use such Unit for a limited business purpose consistent with the Rules and Regulations. Consistent with the Rules and Regulations, no Owner shall allow any activity that causes noises such that any other Unit is unreasonably disturbed as determined solely by the Association. In addition, consultation with clients or customers at a Unit shall not be permitted, nor shall any visible signs of the limited business activity be displayed, and no employees, contractors, or vendor's shall be permitted to regularly visit the Unit. Notwithstanding anything contained to the contrary in this Section 15.A., the use of a Unit for the maintenance of a personal or professional library; for the keeping of personal, business or professional records of accounts; or for the handling of personal business or professional telephone calls or correspondence shall not be deemed to be a violation of these provisions.
41 CG:MemorialBend:Declaration051104 (ii) Use by Declarant. Notwithstanding the generality of the foregoing, so long as Declarant owns any of the Units which are for sale, Declarant and its employees, representatives and agents may maintain establish or relocate business, leasing and/or sales offices,
going, so long as Declarant owns any of the Units which are for sale, Declarant and its employees, representatives and agents may maintain establish or relocate business, leasing and/or sales offices, sales models and other sales facilities within any Unit, (or portion thereof) of the Condominium or within any Limited or Common Element (e.g. club house) as Declarant shall deem appropriate.
B. Alterations, Additions and Improvements. No alterations of any portion of the Common Elements or additions or improvements thereon shall be made by any Owner without the prior written approval of the Board of Directors or the Association.
Further, no alteration (including painting, change of color, etc.) shall be made on the exterior of any door or garage door, window, Balcony, Entry Patio or Garage Approach without the prior written approval of the Board of Directors of the Association. No Owner shall make any structural modification or substantial Improvement to or alteration of or to his or her Unit (including, without limitation, the Balcony, Entry Patio or Garage Approach), any Limited Common Elements, except in a manner authorized in writing by the Board or the Association. In that respect, to the extent deemed necessary by the Board, all payment and performance bonds required by the Association or Declarant, names of all contractors, subcontractors and other partles which will be involved therewith, plans, specifications, mechanical and engineering drawings and renderings for any proposed structural modification or substantial alteration, improvement to or modification of a Unit must be submitted, no less than thirty (30) days prior to the date of commencement of such work, by such Owner to the Board for review and approval. The Board may impose such specifications and
a Unit must be submitted, no less than thirty (30) days prior to the date of commencement of such work, by such Owner to the Board for review and approval. The Board may impose such specifications and requirements as it may reasonably deem necessary in connection therewith, including, without limitation, the right to require (but having no duty to so require) that the Owner provide assurances that the alterations, additions, improvements, and modifications comply with all applicable governmental requirements. Further, the Board has the right to approve or deny any of such alterations, additions, modifications or improvements, or the contractors, subcontractors or other personnel performing same, so that, among other reasons, the quality, integrity and safety of the Condominium can be promoted and in order to ensure that the alterations, additions, improvements and modifications (i) are consistent and compatible with the existing Building, and (II) do not encourage or involve a violation of the Condominium Documents. In the event any Owner constructs or causes to be constructed any alteration, addition, improvement or other modification to his or her Unit which encroaches on any Common Element or any other Unit, the Board may require such Owner, at his or her sole cost and expense, to remove such encroachment and to restore and repair any damage caused by same or attributable thereto. No approval by the Board of any such alterations, additions, modifications or improvements, or the plans, specifications, mechanical and engineering drawings and renderings, or the contractors, subcontractors or other personnel performing same, will be or constitute any representation or warranty by the Board as to the adequacy or sufficiency thereof,
ings and renderings, or the contractors, subcontractors or other personnel performing same, will be or constitute any representation or warranty by the Board as to the adequacy or sufficiency thereof, or of the compliance of same with any applicable laws, codes or ordinances. All alterations, additions, modifications or improvements must be performed in a prompt, diligent and professional manner, must comply with the plans, specifications, CG:MemorialBend: Declaration051104 42 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK, HARRIS COUNTY.
CONDOMINIUM RECORDS OF COUN 188199 mechanical and engineering drawings and renderings submitted to and approved by the Board (with any requisite changes, additions, modifications or alterations thereto, which may be imposed by the Board), and must comply with all applicable codes, ordinances, laws and regulations applicable thereto.
No Owner shall erect antenna(s), aerials, or satellite dish(es), in the windows of a Unit or on the Balcony, Entry Patio, or Garage Approach thereof except as expressly provided herein. Over the air reception devices expressly permitted by Section 207 of the Telecommunication Act of 1996 (47 C.F.R. Section 1.4000) shall be permitted subject to such rules, regulations, requirements, and conditions promulgated by the Board, as allowed by such Telecommunication Act; provided however, that such devices shall not be Installed on any Common Element without the prior written approval of the Board. Further, no Owner shall erect or place any awnings or other exterior attachments, or place any reflective material in the windows of a Unit or on the Balcony, Entry Patio, or Garage Approach thereof except as expressly provided herein.
No Unit shall be altered, remodeled, subdivided or converted into more than one
in the windows of a Unit or on the Balcony, Entry Patio, or Garage Approach thereof except as expressly provided herein.
No Unit shall be altered, remodeled, subdivided or converted into more than one dwelling unit. All draperies, blinds or shutters installed in a Unit shall be subject to the Rules and Regulations. No Owner shall install colored lights or light fixtures presenting the same effect which are visible from outside the Building. No Owner shall make any alteration or modification involving plumbing, electricity and fire protection systems, and/or heating, ventilating, air conditioning systems, or the mechanical or structural systems within such Owner's Unit or the Common Elements, without first ensuring that any proposed alteration or modification complies with all applicable governmental requirements, submitting plans and specifications therefor and the name, address and telephone number of any contractor to the Association and securing the prior written approval of the Association. Such prior written approval is required to ensure that the alterations or modifications: (I) are consistent and compatible with the existing Buildings, and (II) do not encourage or involve a violation of the Condominium Documents. No Owner shall enclose or make any alteration or modification of any nature whatsoever to such Owner's Balcony, Entry Patio, or Garage Approach which shall alter the external appearance of the Balcony, Entry Patio, or Garage Approach.
The furnishings on each Balcony, Entry Patio, or Garage Approach shall be subject to the approval of the Association so as to insure a uniform appearance of the Buildings, No objects or things shall be stored on a Balcony, Entry Patio, or Garage Approach and
proach shall be subject to the approval of the Association so as to insure a uniform appearance of the Buildings, No objects or things shall be stored on a Balcony, Entry Patio, or Garage Approach and no item shall be placed temporarily on or hung from a Balcony, Entry Patlo, or Garage Approach which shall impair the uniform appearance of the Buildings. No outside clothes or drying lines shall be installed or permitted to be installed on, In, or from a Balcony, Entry Patio, or Garage Approach or the Common Elements. No Owner may alter the floor or interior stairwell assembly, which is designed to mitigate sound transmission, without approval of the Board and, in the Board's sole discretion, certification by a qualified engineer that such alternative floor or stairwell system has equal or greater sound transmission mitigation properties (as measured by the STC Rating of the alternative floor system). Any wood, tile or other hard surface flooring within a Unit shall have such sub-flooring as the Association may require to ensure that such wood, tile or other hard surface flooring shall not create a nuisance or disturbance to other Owners. Provided, however, that all interior stairwells shall be at all times covered with carpeting or carpet runners so as to mitigate sound transmission to adjoining units and shall not have any uncovered tile, wood, or other hard surfaces.
43 CG:MemorialBend: Declaration051104 No attic space may be converted into living or recreational space.
Within a reasonable time (not to exceed thirty days) after receipt of notice from the Association, an Owner shall be required to replace any door, garage door, or window serving such Owner's Unit at such Owner's expense should the Association
irty days) after receipt of notice from the Association, an Owner shall be required to replace any door, garage door, or window serving such Owner's Unit at such Owner's expense should the Association determine that such fixture is damaged, deteriorated, or is otherwise in such condition that it cannot be repaired or maintained. Alternatively, the Association shall have the right, but not the obligation, to replace any such fixture and levy the cost of such repair against the Owner as an Individual Purpose Assessment. Provided, however, that any replacement exterior fixture must be of comparable style, quality, and material as the existing fixtures, and the Association must approve, in writing, any change to any such fixture. Any such fixture once installed shall be maintained and painted by the Association.
C.
Leases.
(I) Rules and Regulations for Leasing.
Prior to the leasing of any Unit, each Owner must comply with the provisions of this Section.
(ii) Form and Content of Proposed Lease Agreements.
Any and all lease or rental agreements must be in writing.
Units may be leased only in their entirety; no fraction or portion may be leased.
No transient lessee may be accommodated therein.
No subleases or subleasing shall be allowed.
Each Lease shall specify, by name, those persons intending to occupy the Unit pursuant to the Lease.
All leases must be for a term of no less than six (6) months.
Maximum occupancy requirements are two (2) persons per bedroom, unless otherwise mandated by law (See Section 15.A.
references to Fair Housing Act).
Any lease of a Unit in the Condominium shall be deemed to contain the following provisions, whether or not expressly therein stated, and each Owner covenants and agrees that any lease of a Unit shall contain the following
n the Condominium shall be deemed to contain the following provisions, whether or not expressly therein stated, and each Owner covenants and agrees that any lease of a Unit shall contain the following language and agrees that if such language is not expressly contained therein, then, such language shall be incorporated into such lease by virtue of the existence of this covenant. Any lessee, by occupancy in a Unit, agrees to the 44 CG:MemorialBend: Declaration051104 applicability of this covenant and incorporation of this covenant and the following language into the lease: "(a) Lessee acknowledges that certain promises made to Lessor are made for the benefit of Memorial Bend Owners Association, Inc. (the "Association") relating to Lessee's compliance with the Declaration of Condominium ("Declaration"), Bylaws of the Association ("Bylaws") and Rules and Regulations of the Association ("Rules"). In order to enforce the provisions of this Agreement made for the Association's benefit, Lessee agrees and acknowledges, and Lessor authorizes, that in the event of Lessee's breach or violation of any of the provisions of the Declaration, Bylaws, or Rules, as they may be amended from time to time, such breach shall constitute a breach or violation of the Lease and the Lessee shall be in default thereunder, and the Association shall be authorized, without joinder or authorization from the Owner of the Unit, to take any and all action against the Lessee available at law or equity, including, but not limited to, all remedies available to a landlord upon breach or default of a lease agreement by the Lessee, including the eviction of the Lessee by forcible entry and detainer action brought by the Association. Failure by the Association to enforce any of its rights shall in no event
greement by the Lessee, including the eviction of the Lessee by forcible entry and detainer action brought by the Association. Failure by the Association to enforce any of its rights shall in no event be deemed a waiver of the right to do so thereafter.
(b) Lessee shall comply strictly with all provisions of the Declaration, By-Laws and Rules as any of the foregoing may be lawfully amended from time to time. Lessee shall control the conduct of his or her family, guests and invitees in order to assure compliance with the foregoing and shall indemnify and hold Lessor and the Association harmless for any such person's failure to comply. Lessee acknowledges that the violation by Lessee or any of the parties above described for whose conduct Lessee is responsible to control of any provision of the Declaration, By-Laws or Rules shall constitute a default under this lease."
It shall be the obligation of the Owner to provide the lessee of such Owner's Unit with copies of the Declaration, Bylaws and Rules prior to entry into any lease covering such Unit; such copies to be made available to such Owners and Lessees for such purpose by the Association for reproduction cost.
(iii) Remedies of the Association.
The Owner of the Unit shall be jointly and severally liable with the lessee of his Unit for any and all violations of the Declaration, Bylaws and Rules, for any fines levied against any such lessee by 45 CG:MemorialBend: Declaration051104 the Association, for any attorneys fees, costs, court costs, or other amounts incurred as a result of any violation and for any damages to the Condominium including, without limitation, the Common Elements or Building, caused by such lessee. Provided, however, that an Owner shall not be liable for, or responsible for any criminal
ages to the Condominium including, without limitation, the Common Elements or Building, caused by such lessee. Provided, however, that an Owner shall not be liable for, or responsible for any criminal acts of such lessee.
Further, in the event the Association proceeds to evict a lessee, any costs, including attorney's fees and court costs, associated with the eviction shall be specially assessed against the Unit and the Owner thereof, such being deemed hereby as an expense which benefits the leased Unit and the Owner thereof.
The Association shall have the authority to enforce any violations of the Declaration, or Rules and Regulations by appropriate judicial relief, including injunctions and suit for damages. In any such lawsuit, the Association shall be entitled to reasonable attorney's fees and costs.
D. Offensive Activities. No unlawful, noxious or offensive activity shall be conducted or carried on in any Unit, or upon the Common Elements or anywhere else In the Condominium, nor shall anything be done therein or thereon which may be or become an annoyance or a nuisance to other Owners or the neighborhood or cause unreasonable noise or disturbance to others, or which shall interfere in any manner with any Owner's quiet enjoyment of his or her Unit. No Owner shall do or permit anything to be done or keep anything or permit anything to be kept in his or her Unit or on the Common Elements that would increase the rate of or invalidate the coverage afforded by insurance on the Condominium. No Owner shall store any environmentally hazardous, dangerous, explosive or inflammable liquids or other like materials either in his or her Unit or upon the Common Elements.
E. Signage. No signs or other advertising devices which are visible from the
dangerous, explosive or inflammable liquids or other like materials either in his or her Unit or upon the Common Elements.
E. Signage. No signs or other advertising devices which are visible from the exterior of any Unit or upon the Common Elements shall be displayed on any portion of the Condominium or any portion of any Unit, including "For Sale" signs, except signs erected by the Association identifying all or a portion of the Condominium or providing Information to Owners or their Invitees; provided, however, that nothing contained herein shall be deemed to prohibit or restrict in any manner the right of Declarant to construct and maintain such promotional signs and other sales aids on any portion of the Condominium (other than Units which have been sold) which, in the reasonable Judgment of Declarant are necessary or helpful for its sales program.
F.
Pets/Animals. Rules and Regulations governing Pets/Animals are set forth in the Rules and Regulations of the Association, the Initial version of which are attached to the Bylaws as Schedule "A", and as may be from time to time amended by the Board in accordance with the provisions of the Declaration and Bylaws.
Storage/Refuse/Obstructions. The Common Elements shall not be used for storage of supplies, personal property, garbage or refuse of any kind (except common G.
46 CG:MemorialBend: Declaration051104 OFFICE OF garbage receptacles in the trash dumpster as designated in the Condominium Plan, storage spaces which are Limited Common Elements, storage buildings or other similar structures which may from time to time be placed upon the Common Elements at the discretion of the Declarant or the Board), nor shall the Common Elements, Balconies,
storage buildings or other similar structures which may from time to time be placed upon the Common Elements at the discretion of the Declarant or the Board), nor shall the Common Elements, Balconies, Terraces or Patios be used in any way for the drying, shaking or airing of clothing or other items. Stairs, entrances, hallways, sidewalks, drives and parking areas shall not be obstructed in any way nor shall unauthorized persons or animals play therein or thereon or use such areas for other than their intended purposes. In general, no activities shall be conducted nor conditions maintained by any Owner either in his or her Unit or upon the Common Elements which detracts from the uniform appearance of the Condominium.
H. Maintenance. Each Owner shall maintain his or her Unit and any Limited Common Elements appurtenant thereto in a clean, safe and sanitary condition. Each Owner shall also use due care to avoid damaging any of the Common Elements, including, but not limited to, telephone, water, gas, cable, television, plumbing, power or other utility systems throughout the Condominium and each Owner shall be responsible for his or her negligence or misuse of any of the Common Elements or his or her own facilities resulting in damage to the Common Elements.
I.
Compliance with Laws. Each Owner shall promptly and fully comply with all applicable laws, rules, ordinances, statutes, regulations, or requirements or any governmental agency or authority with respect to the occupancy and use of his or her Unit.
J. No Right of First Refusal. Any Owner (including Declarant) may sell, transfer or otherwise convey such Owner's Condominium Unit free from, and such sale, transfer or other conveyance shall not be subject to, any right of first refusal or any
luding Declarant) may sell, transfer or otherwise convey such Owner's Condominium Unit free from, and such sale, transfer or other conveyance shall not be subject to, any right of first refusal or any similar restriction in favor of the Association.
K. Vehicles. Vehicles not in operating condition shall not be parked, repaired or stored (on blocks or otherwise) anywhere in the Condominium. Without limitation, vehicles shall be deemed not to be in operating condition if same have expired or missing license tags and/or inspection stickers, or are incapable of being driven due to mechanical condition of any kind. Boats, trailers, campers, motor homes, recreational vehicles, commercial vehicles, trucks (other than standard-size pick-up trucks), and the like shall not be parked anywhere in the Condominium except within enclosed garages, unless by doing so there is no room in such enclosed garage for such Owner to park his vehicle(s). No noisy or smoky vehicles may be operated within the Condominium. No garage shall be converted for living, recreational or business purposes, nor shall anything be stored in any garage which would prohibit the parking of vehicles (one vehicle for a one car garage; two vehicles in a two car garage). Except for pedestrian or vehicular ingress or egress into a garage, garage doors must remain closed. Owners are required to park their vehicles in their enclosed garages.
L. Fireworks. The use or discharge of firearms, firecrackers or fireworks is expressly prohibited within or from the Condominium.
CG:MemorialBend:Declaration051104 47 M.
Guest Parking. Parking for guests of any Owner or Unit occupant shall be within such areas designated for "guest parking" on the Land, subject to rules and regulations adopted by the Board from time to tome.
arking. Parking for guests of any Owner or Unit occupant shall be within such areas designated for "guest parking" on the Land, subject to rules and regulations adopted by the Board from time to tome.
N. Business and Sales Office. None of the restrictions contained in this Section 15 shall apply to the business, management, sales and/or leasing office or offices, sales and/or leasing model Units, other commercial activities, or signs or billboards, if any, of Declarant during the sales and/or leasing period of the Condominium (it being understood that Declarant may maintain a sales/leasing office on the Condominium and one or more sales/leasing model Units in the Condominium during such period and the number, size, location and relocation of such offices and models shall be entirely within the discretion of Declarant) or of the Association In furtherance of its power and purposes set forth herein and in the Condominium Documents, as the same may be amended from time to time, including, without limitation, the power of the Association to own a Unit for the use and enjoyment of a resident manger of the Condominium.
16. Sale and Ownership.
A. Condominium. The elements of each Condominium Unit shall be inseparable, and may be sold, assigned, leased, devised or encumbered only as a single Condominium Unit.
B.
Deed/Description of Unit. Every deed, lease, mortgage, deed of trust, will or other instrument may legally describe a Condominium Unit by its identifying Unit number followed by the words "Memorial Bend Place Condominium," and reference to the volume and beginning page number of the Condominium Records of Harris County, Texas, in which this Declaration and any amendments thereto are recorded. Every such
ce Condominium," and reference to the volume and beginning page number of the Condominium Records of Harris County, Texas, in which this Declaration and any amendments thereto are recorded. Every such description shall be good and sufficient for all purposes to sell, convey, transfer, encumber or otherwise affect not only the Unit but also the Common Elements appurtenant thereto. The initial Deeds conveying each Condominium Unit to each Owner may contain reservations, restrictions, exceptions and exclusions which Declarant deems to be consistent with and in the best interests of all Owners (including Declarant) and the Association.
C. Capacity of Owners. A Condominium Unit may be held and owned by more than one person in any real property relationship recognized under the laws of the State of Texas.
17.
Uniform Applicability of Condominium Documents. In general, each Owner shall be subject to all the rights and duties assigned to Owners in general under the terms of the Condominium Documents. To the extent there are unsold Units owned by Declarant, Declarant shall enjoy the same rights and assume the same duties as any other Owner would as they relate to each individual unsold Unit unless otherwise provided herein. So long as Declarant owns one or more Units, Declarant shall be subject to the provisions of the Condominium Documents.
CG:MemorialBend: Declaration051104 48 18.
Mortgages and Mortgagee Protections.
A. Record of Mortgages. Any Owner who mortgages his or her interest in a Condominium Unit shall, within ten (10) days after the execution of such mortgage, give notice to the Association in writing of the name and address of his or her Mortgagee and of any eligible insurer, guarantor, or collateral assignee of his or her
r the execution of such mortgage, give notice to the Association in writing of the name and address of his or her Mortgagee and of any eligible insurer, guarantor, or collateral assignee of his or her Mortgagee, and the amount secured by the mortgage, and the Association shall maintain such information in its records (the "Record of Mortgages") entitled "Mortgages of Condominium Units." The Record of Mortgages shall be separately maintained by the Association or by a person designated by the Association. Each Owner shall, in the same manner, notify the Association as to the release or discharge of any such mortgage.
B. Notices to Mortgagees. The Association shall, at the written request of any Mortgagee, insurer, guarantor, or collateral assignee of a Mortgagee appearing in the Record of Mortgages, notify such Mortgagee, insurer, guarantor, or collateral assignee of a Mortgagee of (1) any unpaid assessments due from the Owner of such Condominium Unit to the Association, (II) the name of each company insuring the Condominium under the Master Policy and the amounts of the coverages thereunder, and of any lapse, cancellation or material modification thereof, (III) any monetary default by an Owner, (iv) the Association's intent to foreclose its lien in accordance with Section 11. H., (v) any proposed action that requires the consent of a specified percentage of Eligible Mortgagees, and (vi) any casualty to, or taking of, either a material portion of the Condominium or the Condominium Unit securing its loan.
C. Effect on Mortgagees. Any First Mortgagee, upon foreclosure of its lien on a Condominium Unit, or upon acceptance of a deed in lieu of foreclosure thereon, shall not be required to pay any unpaid assessments owing thereon which accrue after the
pon foreclosure of its lien on a Condominium Unit, or upon acceptance of a deed in lieu of foreclosure thereon, shall not be required to pay any unpaid assessments owing thereon which accrue after the date of recordation of its First Mortgage and prior to the acquisition of title to such Condominium Unit by any such First Mortgagee, but shall be liable for such unpaid assessments accruing from and after the date that such First Mortgagee or its assignee acquires title to such Condominium Unit. Any assessment lien created or claimed hereunder as to any Condominium Unit shall be subject and subordinate to the rights of any holder of any duly recorded First Mortgage upon such Condominium Unit made in good faith and for value as to assessments due and payable after the date of recordation of such mortgage and prior to the date such First Mortgagee acquires title to such Condominium Unit. Except as expressly set forth herein, no lien created under the provisions of this Declaration shall in any way defeat, invalidate or Impair the rights of any First Mortgagee under any such duly recorded First Mortgage unless such First Mortgagee thereunder shall expressly subordinate Its interest, in writing, to such llen.
D. Agreements with Subordinate Lienholders. Notwithstanding anything contained in this Declaration to the contrary, the Association shall have the authority, acting by and through its Board of Directors, to enter into written agreements with the holders of mortgages, deeds of trust, or other liens which are subordinate to the lien in favor of the Association, whereby the Association would agree to notify any such subordinate lienholder with at least sixty (60) day prior written notice, of the
s which are subordinate to the lien in favor of the Association, whereby the Association would agree to notify any such subordinate lienholder with at least sixty (60) day prior written notice, of the Association's intent to foreclose the Association's lien, for the sole purpose of allowing 49 CG:MemorialBend:Declaration051104 such subordinate lienholder the opportunity, but not the obligation, to advance sufficient funds to the Association to cure any default by the Owner in the payment of the Assessments and other charges due to the Association and abate any pending foreclosure by the Association of the Association's Lien. Provided, however, that as a condition precedent to the validity of any such agreement to provide notice, such agreement must contain an address for notification purposes for such subordinate lienholder, and such address may not be changed without written notice of any such change furnished to the Association the receipt of which must be acknowledged in writing by the Association. At the discretion of the Board of Directors, any such agreement may be recorded in the Real Property Records of Harris County, Texas.
E. Binding on Mortgagees. No breach of any provision of this Declaration shall impair or invalidate the lien of any duly recorded mortgage or deed of trust made in good faith and for value encumbering one (1) or more Condominium Units; provided, however, that all the covenants, conditions, restrictions, limitations, reservations, grants of easements, rights, rights-of-way, liens, charges and equitable servitude contained in this Declaration shall be binding upon and effective against any person who acquires title to or any beneficial interest in any Condominium Unit by way of foreclosure or otherwise.
F.
ude contained in this Declaration shall be binding upon and effective against any person who acquires title to or any beneficial interest in any Condominium Unit by way of foreclosure or otherwise.
F.
Financial Statements. To the extent the Association does not have an audited financial statement, any First Mortgagee shall have the right to have an audited financial statement prepared at its own expense.
G. Working Capital Requirements. Declarant shall establish a working capital fund to meet unforeseen expenditures or to purchase any additional equipment or services. The initial working capital fund established by Declarant shall be in an amount that is at least equal to two (2) months of estimated Common Expenses for each Unit.
Each Unit's share of the working capital fund may be collected from each Owner elther at the time the sale of the Unit is closed or when control of the Condominium is transferred to the Owners, whichever is earlier. Any amounts paid into the working capital fund shall not be considered as advance payments of regular Common Expense assessments. The working capital fund shall be transferred to the Association for deposit to a segregated fund when control of the Association is transferred to the Owners.
Declarant shall not use working capital funds to defray any of its expenses, reserve contributions, or construction costs or to make up any budget deficits while it is in control of the Association. Upon the sale of any unsold Unit, Declarant shall be entitled to reimburse itself for any funds it paid to the Association for any unsold Unit's share of the working capital fund by using funds collected at closing when the Unit is sold.
19. Boundaries. In the event that any portion of a Unit or a Common Element
sociation for any unsold Unit's share of the working capital fund by using funds collected at closing when the Unit is sold.
19. Boundaries. In the event that any portion of a Unit or a Common Element changes boundaries and thereby encroaches upon another Unit or Common Element due to the shifting, settling or moving of the Building, such changed boundaries shall be deemed to constitute the boundaries of the Units and the Common Elements so affected. Such change will not affect the Percentage of Common Ownership Interest CG:MemorialBend: Declaration051104 50 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK. HARRIS COUNTY, TE ohns OR COUNT assigned to the Units affected by the change.
20.
Amendments and Modifications.
A.
Amendments. No purported amendment of any Condominium Document or any action or inaction of the Association shall: (i) (ii) (lif) vacate, waive, revoke, abandon or terminate, (other than by fire or other casualty or a taking of all Units by condemnation) the Condominium or the Declaration; be deemed to have changed the Percentage of Common Interest Ownership assigned to any Unit, except as provided in Sections 14 or 20.B. or D. hereof, or the dimensions or boundaries of any Unit (including, without limitation, any change resulting from subdivision or partition), except pursuant to Section 19 hereof; or be deemed to have changed or amended any material provision of the Condominium Documents (with the express exception of the provisions of the Bylaws which may be amended in accordance therewith or unless such change or amendment is done pursuant to Sections 20.B. or 20.D.) including, but not limited to, voting rights, Assessments, reserves, insurance or fidelity bonds, rights to use of or interests in, or sale or transfer (apart from the Units to which
s 20.B. or 20.D.) including, but not limited to, voting rights, Assessments, reserves, insurance or fidelity bonds, rights to use of or interests in, or sale or transfer (apart from the Units to which they relate), abandonment, partition, subdivision or encumbrance of, the Common Elements (the granting by the Association of easements for public utilities or other public purposes consistent with the intended use of the Common Elements not being deemed a transfer within the meaning of the foregoing), responsibility for the maintenance and repair of the Condominium, expansion or contraction of the Condominium or the addition, annexation or withdrawal of property to or from the Condominium, convertibility of Units into Common Elements or vice versa, leasing of Units, imposition of any right of first refusal or similar restriction on the right of an Owner to sell, transfer or otherwise convey such Owner's Condominium Unit, or any other provision which is for the express benefit of any Mortgagee, insurer or guarantor of any first mortgage or deed of trust secured by a lien on any Condominium Unit, including, without limitation, provisions concerning the disposition of Insurance proceeds and condemnation awards; unless: (a) as to item (ii) above, all Owners or Eligible Mortgagees vote pursuant to Section 6.E., above, for such action at a meeting of the Association duly called and reflected in an instrument to such effect duly recorded in the Real Property Records of Harris County, Texas; or CG:MemorialBend: Declaration051104 51 (b) as to items (I) and (iii) above, Owners (other than Declarant) holding in the aggregate at least eighty percent (80%) (as to item (i) above) and sixty-seven percent (67%) (as to item (iii) above)
(b) as to items (I) and (iii) above, Owners (other than Declarant) holding in the aggregate at least eighty percent (80%) (as to item (i) above) and sixty-seven percent (67%) (as to item (iii) above) of the Percentages of Common Interest Ownership assigned to all Units (other than those owned by Declarant) and Eligible Mortgagees which represent at least eighty percent (80%) (as to item (i) above) and sixty-seven percent (67%) (as to item (III) above) of the votes of Units that are subject to mortgages held by Eligible Mortgagees vote or otherwise agree to such action at a meeting of the Association duly called and reflected in an instrument to such effect duly recorded in the Real Property Records of Harris County, Texas; provided, however, unanimity of each Owner and each Eligible Mortgagee shall be required to the extent set forth in the Act and that no amendment shall discriminate against any Owner or against any Unit or against any group or class of Owners or Units without the prior written consent of such Owners, nor shall any amendment make any change in the provisions herein, relating to insurance and/or repair or reconstruction in the event of casualty or damage without the prior written consent of all Eligible Mortgagees secured by a lien upon one (1) or more of the Units affected. In addition, the Limited Common Elements and the provisions of this Declaration relating to the right to use the Limited Common Elements may not be altered without the consent of each affected Owner and the Eligible Mortgagee, if any, holding a mortgage lien on such Unit.
Any other amendment to the Declaration (other than those described in 1, li, or iii above or 20B or D hereof) may be made by a vote or agreement of the Owners to
holding a mortgage lien on such Unit.
Any other amendment to the Declaration (other than those described in 1, li, or iii above or 20B or D hereof) may be made by a vote or agreement of the Owners to which at least 67 percent of the votes of the Association are allocated, and may be adopted (a) by written ballot that states the exact wording or substance of the amendment and that specifies the date by when a ballot must be received to be counted, or (b) at a special meeting of the members of the Association after written notice of the meeting has been delivered to the Owners setting forth the purpose of the meeting and the proposed amendment in the manner set forth in the Bylaws.
B. Subdivision of Units. Except as provided in Section 20.D. hereof, no Unit shall be subdivided or partitioned unless: (1) the Owner of such Unit, (li) the Eligible Mortgagee, if any, holding a mortgage llen on such Unit and (iii) the Association agree to such subdivision by an Instrument to such effect duly recorded in the Real Property Records of Harris County, Texas. In the event of a subdivision pursuant to this Section 20.B., the Owner so dividing a Unit shall bear all costs and expenses of amending this Declaration to reflect the same. The Association may not subdivide or partition any Unit unless it otherwise has a legal right to subdivide or partition said Unit and the Association has received the approval of Owners holding at least sixty-seven percent (67%) of the Common Interest Ownership assigned to all Units (other than those owned by the Declarant), or that of Mortgagees holding sixty-seven percent (67%) of the First Mortgages (based on one vote for each First Mortgage held).
CG:MemorialBend:Declaration051104 52
han those owned by the Declarant), or that of Mortgagees holding sixty-seven percent (67%) of the First Mortgages (based on one vote for each First Mortgage held).
CG:MemorialBend:Declaration051104 52 C. Approval by Mortgagees of Amendments. Any Mortgagee who receives by certified or registered mail, with a "return receipt" requested, a written request to approve an amendment, modification or supplement hereto, and who does not deliver or post to the Association a negative response within thirty (30) days thereafter, shall, to the extent permitted by the Act, be deemed to have approved such request.
D. Amendments by Declarant. Notwithstanding the generality of the foregoing, and notwithstanding anything in this Declaration to the contrary, Declarant expressly retains the right and shall at all times have the right, to the extent permitted by the Act, to amend this Declaration without the consent or approval of any other person in order to: (i) (ii) (iii) (iv) (v) correct survey or other errors made herein prior to the first meeting of Owners; change the Percentage of Common Interest Ownership assigned to, and the dimensions of, Units owned by Declarant so long as, except as permitted by the Declaration, such changes do not affect the Percentage of Common Interest Ownership assigned to, or the dimensions of, the Units not owned by Declarant; make this Declaration comply with the mandatory provisions of the Act, if it be deficient in any such respect, or, as long as Declarant owns any Unit which has not been occupied, conform this Declaration to the requirements of the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the Federal Housing Administration or the Veterans Administration, with respect to condominium documentation;
of the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the Federal Housing Administration or the Veterans Administration, with respect to condominium documentation; change the assignment and allocation of parking spaces or storage cabinets which are assigned to Units owned by Declarant; each by written instrument to such effect executed by Declarant, only and duly recorded in the Real Property Records of Harris County, Texas; amend the Declaration in any way deemed necessary or desirable to reflect the subdivision, combining, remodeling or other modification of Units which shall change the Percentage of Common Interest Ownership of all Units as a result thereof. Notwithstanding any contrary provision in this Declaration, the right of Declarant to amend the Declaration under this section (v) which amendment will result in a change in the Percentage of Common Interest Ownership of any Unit other than the combined, divided, modified or remodeled Units, may not be exercised after seven (7) years from the date the Declaration is recorded in the Real Property Records of Harris County, Texas.
Declarant expressly retains the right to make such amendments without permission of the Association or any other person or entity, whether said amendment 53 CG:MemorialBend: Declaration051104 or amendments occur before or after the Association takes over administration of the Condominium. Each Owner, by acceptance of a deed covering his or her Unit, authorizes and empowers Declarant, as such Owner's agent and attorney-in-fact for said purposes only, to execute, deliver and record any such amendment or amendments either in the name of Declarant, or in the name and as the act of such
s such Owner's agent and attorney-in-fact for said purposes only, to execute, deliver and record any such amendment or amendments either in the name of Declarant, or in the name and as the act of such Owner and all other Owners, and this power and authorization shall be irrevocable.
21.
Taxation.
A. Of Units After Separate Assessment. Each Unit shall be assessed and taxed for all purposes as a separate parcel of real estate entirely independent of the Building, and independent of the Condominium or the Common Elements thereof, and each Owner shall be solely responsible for the payment of all taxes, municipal claims, charges and assessments of any nature whatsoever assessed against such Unit. The valuation of the General Common Elements and the Limited Common Elements shall be assessed separately to each Owner in accordance with his or her Percentage of Common Interest Ownership in the Common Elements. Such payment shall be made prior to the due date of such taxes, municipal claims, charges and assessments.
B.
Of Units Prior to Separate Assessment. Prior to the time the respective taxing authorities shall have assessed and taxed each Unit as a separate parcel of real estate as provided above, any such taxes, municipal claims, charges and assessments assessed against the Condominium as a whole shall be an expense of the then existing Owner(s) of the Condominium (including Owners of Units then conveyed), apportioned among such Owners on the same basis as the percentage of Common Interest Ownership of the Common Elements, and pro-rated among such Owners to reflect their respective period of ownership for which such tax levy is effective.
22.
Remedies.
In the event any default is made by any Owner under the Act, this Declaration,
ted among such Owners to reflect their respective period of ownership for which such tax levy is effective.
22.
Remedies.
In the event any default is made by any Owner under the Act, this Declaration, the Bylaws, or the Rules or Regulations, the Board or the Association or their representative shall have all of the rights and remedies which may be provided by the Act, this Declaration, or the Bylaws, or which may be available at law or in equity, and may prosecute any action or other proceeding against any defaulting Owner and/or Owners for enforcement of any lien or to enforce compliance with the matter with respect to which default has been made, by injunctive relief or otherwise, or for the collection of any sums, debts, or damages in default or arising from any default. The Board or its authorized representative shall be further empowered and authorized to correct and cure any matter in default and to do whatever may be necessary for such purpose. All expenses incurred in connection with any such action or proceeding shall be a part of the Common Expenses of this Condominium and collectible from each Owner as in the case of other Common Expenses. The provisions of this Section shall not limit the right or obligation of any Owner from prosecuting any action or other proceeding against any other Owner or Owners to enforce any provision of the Act, this Declaration, the Bylaws, or the Rules and Regulations.
CG:MemorialBend: Declaration051104 54 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK, HARRIS COUNTY, TEXAS 23.
Miscellaneous.
A. Effect of Accordance or Recordation of a Deed. The acceptance or recordation of a Deed to a Condominium Unit or the entering Into occupancy of a Unit shall constitute an agreement by the Owner and his or her tenants, servants, visitors or
a Deed. The acceptance or recordation of a Deed to a Condominium Unit or the entering Into occupancy of a Unit shall constitute an agreement by the Owner and his or her tenants, servants, visitors or occupants that: (i) this Declaration and the Condominium Documents, as they may be amended from time to time, and all items affecting title to the Land are accepted, agreed to and ratified by the Association and each such Owner, tenant, visitor, servant or occupant, and their respective heirs, executors, administrators, successors, legal representatives, assigns, purchasers, grantees, mortgagees and all others having or claiming an interest in any Unit, and all of such provisions shall be deemed to be covenants running with the land to bind any person having at any time any interest or estate in such Condominium Unit, as though such provisions were cited and stipulated In each and every Deed to a Condominium Unit, and (ii) violations of the terms of the Condominium Documents by any such person shall be deemed to be a substantial violation of the duties of the Owner.
B.
Severability, Interpretation. If any provision of this Declaration or the Bylaws, or any section, sentence, paragraph, clause, phrase or word, or the application thereof in any circumstance shall be invalid or unenforceable, the validity or enforceability of the remainder of the Condominium Documents and the application of any such provisions, section, sentence, paragraph, clause, phrase, or word in any other circumstance shall not be affected thereby. If anything in the Condominium Documents shall be susceptible to two or more interpretations, then the interpretation which shall most nearly be in accord with the intent of the Act, and the general purposes and intent
Condominium Documents shall be susceptible to two or more interpretations, then the interpretation which shall most nearly be in accord with the intent of the Act, and the general purposes and intent of the Condominium Documents, shall govern.
C. No Waiver. No provision contained in this Declaration shall be deemed to have been abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches which may occur.
D. Separation of Estates. The separate and common estates created by this Declaration shall continue until this Declaration is terminated in the manner and to the extent as is provided herein.
E. No Gift or Dedication. Nothing contained in this Declaration shall be deemed to be a gift or dedication of all or any part of the Land or the Building to the public or for any public use.
F.
Mechanic's and Materialman's Liens. No labor performed or materials furnished and incorporated in a Unit with the consent or at the request of an Owner or his or her agent or his or her contractor or subcontractor shall be the basis for the filing of a lien against the Condominium or the Unit of any other Owner not expressly consenting to or requesting the same, or against the Common Elements. Each Owner shall Indemnify and hold harmless the Condominium and each of the other Owners from and against any loss, cost or expense in connection with construction performed or for labor, materials, services or other products incorporated in the Owner's Unit at such Owner's request.
CG:MemorialBend:Declaration051104 55 G. Security. THE TERM "DECLARANT" AS USED IN THIS SECTION 23G SHALL HAVE THE MEANING SET FORTH IN SECTION 1 "DEFINITIONS" HEREOF AND SHALL FURTHER INCLUDE, WITHOUT LIMITATION, THE
Declaration051104 55 G. Security. THE TERM "DECLARANT" AS USED IN THIS SECTION 23G SHALL HAVE THE MEANING SET FORTH IN SECTION 1 "DEFINITIONS" HEREOF AND SHALL FURTHER INCLUDE, WITHOUT LIMITATION, THE DECLARANT, ITS GENERAL PARTNER(S), PARTNERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUB-CONTRACTORS, DESIGN CONSULTANTS, ARCHITECTS, ADVISORS, DEVELOPMENT CONSULTANTS, BROKERS, SALES PERSONNEL, AND MARKETING AGENTS. THE TERM "ASSOCIATION" AS USED IN THIS SECTION 23G SHALL HAVE THE MEANING SET FORTH IN SECTION 1 "DEFINITIONS" HEREOF AND SHALL FURTHER INCLUDE, WITHOUT LIMITATION, THE ASSOCIATION, ITS DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, AND AGENTS. THE DECLARANT AND THE ASSOCIATION SHALL NOT IN ANY WAY BE CONSIDERED AN INSURER OR GUARANTOR OF SECURITY WITHIN THE CONDOMINIUM. NEITHER SHALL THE DECLARANT OR THE ASSOCIATION BE HELD LIABLE FOR ANY LOSS OR DAMAGE BY REASON OF FAILURE TO PROVIDE ADEQUATE SECURITY OR INEFFECTIVENESS OF SECURITY MEASURES UNDERTAKEN. THE DECLARANT AND THE ASSOCIATION DO NOT REPRESENT OR WARRANT THAT ANY FIRE PROTECTION, BURGLAR ALARM SYSTEMS, ACCESS CONTROL SYSTEMS, PATROL SERVICES, SURVEILLANCE EQUIPMENT, MONITORING DEVICES, OR OTHER SECURITY SYSTEMS (IF ANY ARE PRESENT) WILL PREVENT LOSS BY FIRE, SMOKE, BURGLARY, THEFT, HOLD-UP OR OTHERWISE, NOR THAT FIRE PROTECTION, BURGLAR, ALARM SYSTEMS, ACCESS CONTROL SYSTEMS, PATROL SERVICES, SURVEILLANCE EQUIPMENT, MONITORING DEVICES OR OTHER SECURITY SYSTEMS WILL IN ALL CASES PROVIDE THE DETECTION OR PROTECTION FOR WHICH THE SYSTEM IS DESIGNED OR INTENDED. THE DECLARANT AND THE ASSOCIATION ARE NOT AN INSURER AND EACH OWNER AND OCCUPANT OF ANY UNIT AND EACH TENANT, GUEST AND INVITEE OF ANY OWNER ASSUMES ALL RISKS FOR LOSS OR DAMAGE TO PERSONS, TO
TENDED. THE DECLARANT AND THE ASSOCIATION ARE NOT AN INSURER AND EACH OWNER AND OCCUPANT OF ANY UNIT AND EACH TENANT, GUEST AND INVITEE OF ANY OWNER ASSUMES ALL RISKS FOR LOSS OR DAMAGE TO PERSONS, TO UNITS AND TO THE CONTENTS OF UNITS AND ACKNOWLEDGES THAT THE DECLARANT AND THE ASSOCIATION HAVE MADE NO REPRESENTATIONS OR WARRANTIES NOR HAS ANY OWNER, OCCUPANT, TENANT, GUEST OR INVITEE RELIED UPON ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RELATIVE TO ANY FIRE PROTECTION, BURGLAR ALARM SYSTEMS, ACCESS CONTROL SYSTEMS, PATROL SERVICES, SURVEILLANCE EQUIPMENT, MONITORING DEVICES OR OTHER SECURITY SYSTEMS RECOMMENDED OR INSTALLED OR ANY SECURITY MEASURES UNDERTAKEN WITHIN THE CONDOMINIUM. NOTHING IN THIS PARAGRAPH SHOULD BE INTERPRETED TO IMPLY THAT THE DECLARANT AND/OR THE ASSOCIATION HAS ANY OBLIGATION TO PROVIDE ANY OF THE SECURITY MEASURES REFERRED TO IN THIS PARAGRAPH.
Without limitation of any other provision of this Declaration, each Owner and their occupants, family, guests and invitees, covenant and agree with respect to any and all security services, systems and facilities provided directly or indirectly by the Declarant and/or Association as follows: CG:MemorialBend: Declaration051104 56 1.
2.
3.
Security is the sole responsibility of local law enforcement agencies and individual Owners, their occupants, and their respective guests and invitees. It is acknowledged that the Declarant and Association have no obligation whatsoever to provide security. Security services, systems and facilities, if any, may be provided at the sole discretion of the Board of Directors. The providing of any security services, systems and facilities at any time shall in no way prevent
es, systems and facilities, if any, may be provided at the sole discretion of the Board of Directors. The providing of any security services, systems and facilities at any time shall in no way prevent the Board thereafter electing to discontinue or temporarily or permanently remove such security service, systems and facilities or any part thereof.
Any third party providers of security services (including those providing maintenance and repair of security systems and facilities) shall be independent contractors, the acts or omissions of which shall not be imputed to the Declarant, Association or its officers, directors, committee members, Manager, agents or employees.
Providing of any security services, systems and facilities shall never be construed as an undertaking by the Declarant and Association to provide personal security or as a guarantee or warranty that the presence of any security service, systems or facilities will in any way increase personal safety or prevent personal injury or property damage due to negligence, criminal conduct or any other cause.
EACH OWNER, BY HIS ACCEPTANCE OF A DEED TO A UNIT, SHALL BE DEEMED TO HAVE WAIVED, ON BEHALF OF SUCH OWNER AND SUCH OWNER'S OCCUPANTS, AND THEIR RESPECTIVE FAMILY MEMBERS, GUESTS, TENANTS AND INVITEES, ANY AND ALL CLAIMS, NOW OR HEREAFTER ARISING AGAINST THE DECLARANT AND THE ASSOCIATION ARISING OUT OF OR RELATING TO ANY INJURIES, LOSS OR DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION ANY INJURY OR DAMAGES CAUSED BY THEFT, BURGLARY, TRESPASS, ASSAULT, VANDALISM OR ANY OTHER CRIME, TO ANY PERSON OR PROPERTY ARISING, DIRECTLY OR INDIRECTLY, FROM THE PROVIDING OR FAILURE TO PROVIDE ANY SECURITY SERVICES, SYSTEMS AND FACILITIES, OR THE DISCONTINUATION, DISRUPTION, DEFECT, MALFUNCTION,
ANY PERSON OR PROPERTY ARISING, DIRECTLY OR INDIRECTLY, FROM THE PROVIDING OR FAILURE TO PROVIDE ANY SECURITY SERVICES, SYSTEMS AND FACILITIES, OR THE DISCONTINUATION, DISRUPTION, DEFECT, MALFUNCTION, OPERATION, REPAIR, REPLACEMENT OR USE OF ANY SECURITY SERVICES,SYSTEMS AND FACILITIES, WHETHER CAUSED OR ALLEGEDLY CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF THE DECLARANT OR THE ASSOCIATION.
To the extent the release in this Paragraph 23G is not deemed effective as to any occupant, or any family member, guest or invitee of an Owner or occupant of a Unit, the Owner of each Unit hereby indemnifies and agrees to defend and hold harmless the Declarant and the Association, and their respective officers, directors, committee members, Manager, managing agents, and employees from and against any and all claims, actions, sults, CG:MemorialBend:Declaration051104 57 judgments, damages, costs and expenses (including attorney fees and court costs) arising from bodily injury (including, without limitation, mental anguish, emotional distress and death) and/or loss or damage to property suffered or incurred by any such occupant of such Unit, or any family member, guest or invitee of the Owner or occupant of such Unit, as a result of criminal activity within or in the vicinity of the Property, WHETHER CAUSED OR ALLEGEDLY CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF THE DECLARANT, THE ASSOCIATION OR THEIR RESPECTIVE OFFICERS, DIRECTORS, COMMITTEE MEMBERS, AGENTS, CONTRACTORS OR EMPLOYEES.
Any obligation or liability of the Association which is borne by the Association because of an Owner not abiding by such waiver, release and indemnity obligations under this Article shall be assessed by the Association against the Unit of the Owner who failed to perform such
ation because of an Owner not abiding by such waiver, release and indemnity obligations under this Article shall be assessed by the Association against the Unit of the Owner who failed to perform such obligation giving rise to such liability, as an Assessment against such Unit and its Owner. Nothing herein shall make any Owner of a Unit liable to the Association or any other Unit Owner for any bodily injury (defined above) and/or loss or damage to property of the occupant, family member, guest or invitee of any other Unit Owner.
H. Indoor Air Quality And Environmental Conditions. THE TERM "DECLARANT" AS USED IN THIS SECTION 23 (MISCELLANEOUS), SHALL HAVE THE MEANING SET FORTH IN PARAGRAPH SECTION 1 (DEFINITIONS), HEREOF AND SHALL FURTHER INCLUDE, WITHOUT LIMITATION, THE DECLARANT, ITS GENERAL PARTNER(S), PARTNERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUB-CONTRACTORS, DESIGN CONSULTANTS, ARCHITECTS, ADVISORS, BROKERS, SALES PERSONNEL AND MARKETING AGENTS. THE TERM "ASSOCIATION" AS USED IN THIS SECTION SHALL HAVE THE MEANING SET FORTH IN SECTION 1 (DEFINITIONS), HEREOF AND SHALL FURTHER INCLUDE, WITHOUT LIMITATION, THE ASSOCIATION, ITS DIRECTORS, MANAGERS, EMPLOYEES, AND AGENTS. THE DECLARANT AND THE ASSOCIATION SHALL NOT IN ANY WAY BE CONSIDERED AN INSURER OR GUARANTOR OF ENVIRONMENTAL CONDITIONS OR INDOOR AIR QUALITY WITHIN THE CONDOMINIUM. NEITHER SHALL THE DECLARANT OR THE ASSOCIATION BE LIABLE FOR ANY LOSS OR DAMAGE FOR FAILURE TO PROVIDE ADEQUATE INDOOR AIR QUALITY OR BY REASON OF THE EXISTENCE OF ANY ADVERSE ENVIRONMENTAL CONDITION. THE DECLARANT AND THE ASSOCIATION DO NOT REPRESENT OR WARRANT THAT ANY CONSTRUCTION MATERIALS, AIR FILTERS, MECHANICAL, HEATING, VENTILATING OR AIR CONDITIONING SYSTEMS AND CHEMICALS NECESSARY FOR THE CLEANING
RANT AND THE ASSOCIATION DO NOT REPRESENT OR WARRANT THAT ANY CONSTRUCTION MATERIALS, AIR FILTERS, MECHANICAL, HEATING, VENTILATING OR AIR CONDITIONING SYSTEMS AND CHEMICALS NECESSARY FOR THE CLEANING OR PEST CONTROL OF THE CONDOMINIUM WILL PREVENT THE EXISTENCE OR SPREAD OF BIOLOGICAL ORGANISMS, COOKING ODORS, ANIMAL DANDER, DUST MITES, FUNGUS, MOLD, POLLEN, TOBACCO SMOKE, DUST OR THE TRANSMISSION OF INTERIOR OR EXTERIOR NOISE LEVELS. THE DECLARANT AND THE ASSOCIATION ARE NOT AN INSURER AND EACH OWNER AND OCCUPANT OF ANY UNIT AND EACH TENANT, GUEST OR INVITEE OF ANY CG:MemorialBend: Declaration051104 58 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK, HARRIS COUNTY, TEXAS CONDOMINIUM RECORDS OF COUNTY CLI OWNER ASSUMES ALL RISKS FOR INDOOR AIR QUALITY AND ENVIRONMENTAL CONDITIONS AND ACKNOWLEDGES THAT THE DECLARANT AND THE ASSOCIATION, HAVE MADE NO REPRESENTATIONS OR WARRANTIES REGARDING INDOOR AIR QUALITY OR ENVIRONMENTAL CONDITIONS WITHIN THE CONDOMINIUM, NOR HAS ANY OWNER, OCCUPANT, TENANT, GUEST OR INVITEE RELIED UPON ANY SUCH REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RELATIVE TO THE INDOOR AIR QUALITY OR ENVIRONMENTAL CONDITIONS WITHIN THE CONDOMINIUM.
I. Claims against Declarant. Each Owner, by acceptance of his/her/its deed to a Condominium Unit, expressly agrees that any dispute, controversy, claim or other matter in question between such Owner (or the Association acting on behalf of any Owner on matters affecting the Condominium) and Declarant (including Its general partner(s), partners, directors, managers, officers, employees, agents, contractors, sub-contractors, design consultants, architects, advisors, brokers, sales personnel and
rant (including Its general partner(s), partners, directors, managers, officers, employees, agents, contractors, sub-contractors, design consultants, architects, advisors, brokers, sales personnel and marketing agents) arising out of or related in any way to such Owner's acquisition of such Condominium Unit, this Declaration (or any amendment hereto), to any alleged act or omission of the Declarant (including its general partners, partners, directors, managers, officers, employees, agents, contractors, subcontractors, design consultants, architects, advisors, brokers, sales personnel and marketing agents) shall be resolved and settled only through binding arbitration, in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then currently in effect. Notice of demand for arbitration shall be filed in writing with the other party and with the American Arbitration Association. A demand for arbitration shall be made within a reasonable time after the claim has arisen and in no event shall it be made after the expiration of any applicable statute of limitations period. No arbitration arising out of or relating to this paragraph shall include, by consolidation, joinder or in any other manner, any person or entity other than Owner and Declarant or contractor, unless it is shown at the time the demand for arbitration is filed that (1) such person or entity is substantially involved in a common question of fact or law, (2) the presence of such person or entity is required if complete relief is to be accorded in arbitration, and (3) the interest or responsibility of such person or entity in the matter is not insubstantial.
A party who files a notice of demand for arbitration must assert in the
be accorded in arbitration, and (3) the interest or responsibility of such person or entity in the matter is not insubstantial.
A party who files a notice of demand for arbitration must assert in the demand all claims then known to that party. When a party fails to include a claim through oversight, inadvertence or excusable neglect, or when a claim has matured or been acquired subsequently, the arbitrator may permit amendment.
This agreement to arbitrate shall be specifically enforceable under applicable law in any court having jurisdiction thereof. The award rendered by the arbitrator shall be final and judgment may be entered upon it in accordance with applicable law In any court having jurisdiction thereof.
59 J.
Exhibits. All exhibits, attachments, annexed instruments and addenda referred to herein shall be considered a part hereof for all purposes with the same force and effect as if copied verbatim herein.
K. Notices. Notices provided for in the Act, this Declaration or the Bylaws shall be in writing and shall be addressed to the Board or the Association at the address of the Board, the Association or their respective representatives which may be established from time to time and of which the Owners shall be notified. Notice to the Owners may be sent to the malling address of their respective Units or to such other address which any Owner may in writing designate by notice thereof to the Board, the Association or their respective representatives. Any notice which is required to be sent, given or delivered pursuant to the terms of this Declaration, the Bylaws or the Rules and Regulations shall be deemed sent, given and delivered on the earlier of (i) the date actually received or (ii) three (3) business days after deposit for delivery by the U.S.
he Bylaws or the Rules and Regulations shall be deemed sent, given and delivered on the earlier of (i) the date actually received or (ii) three (3) business days after deposit for delivery by the U.S.
Postal Service, postage prepaid, certified mail, return receipt requested.
L. Omissions. In the event of the omission from the Condominium Documents of any word, sentence, clause, provision or stipulation which shall be necessary for the accomplishment of the intent and purposes hereof or any part hereof, then such omitted matter shall be applied by inference and/or by reference to the Act.
Captions and Exhibits. Captions used in the various articles and sections of this Declaration are for convenience only and they are not intended to modify or affect the meaning of any of the substantive provisions hereof.
M.
N.
Use of Number and Gender. Wherever used herein and unless the content shall otherwise provide, the singular number shall include the plural, the plural number shall include the singular, and the use of any gender shall include all genders.
0.
Conflicting or Inconsistent Provisions. If at any time, a provision of the Rules and Regulations, Bylaws, as then existing, Articles of Incorporation or community policies promulgated by the Board conflicts with or is inconsistent with the provisions of this Declaration, the hierarchy of authority shall be as follows: Declaration (highest), Articles of Incorporation, Bylaws, Rules and Regulations, the community policles promulgated by the Board (lowest).
P.
Governing Law. THE CONDOMINIUM DOCUMENTS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS. VENUE FOR ANY ACTION BROUGHT IN CONNECTION WITH THE CONDOMINIUM SHALL BE IN HARRIS COUNTY, TEXAS.
Q: Use of Names, Proprietary Information. The names "Memorial Bend Place"
LAWS OF THE STATE OF TEXAS. VENUE FOR ANY ACTION BROUGHT IN CONNECTION WITH THE CONDOMINIUM SHALL BE IN HARRIS COUNTY, TEXAS.
Q: Use of Names, Proprietary Information. The names "Memorial Bend Place" "Memorial Bend Place Condominium", "Memorial Bend Place Town Homes (a Condominium Community)" as used within this document and related documents referenced herein which relate to the Condominium are proprietary to Declarant and may not be used by any person or entity for any commercial use, pecuniary gain, or profit; and may not be used for any personal use whatsoever, including, without limitation, the creation, publication, or distribution of newsletters, publications, internet 60 websites, or other methods or manner of communication without the prior written consent or authorization of the Declarant. The violation of the foregoing provisions shall be subject to injunctive relief. Similarly, the use of the name Memorial Bend Owners Association, Inc. shall be proprietary to the Association and may not be used by any person or entity for any commercial use whatsoever, including, without limitation, the creation, publication, or distribution of newsletters, publications, internet websites or other methods or manner of communication without the prior consent of or authority of the Association. The violation of the foregoing shall be subject to injunctive relief.
IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed the day and year first written above.
DECLARANT TCR MEMORIAL BEND HOLDINGS LIMITED PARTNERSHIP, a Texas limited partnership By: TCR GC Memorial Bend, Inc., its sole General Partner By: BPM.
Its: VICE PRESIDENT STATE OF TEXAS COUNTY OF HARRIS § § § vos con con 1214 day of by_BRIAN F. HASTIN This instrument was acknowledged before me on the MAY
Bend, Inc., its sole General Partner By: BPM.
Its: VICE PRESIDENT STATE OF TEXAS COUNTY OF HARRIS § § § vos con con 1214 day of by_BRIAN F. HASTIN This instrument was acknowledged before me on the MAY DEN' VICE PRESIDENT 2007, of TCR GC Memorial Bend, Inc., the Sole General Partner of TCR Memorial Bend Holdings Limited Partnership, a Texas limited partnership, on behalf of said Partnership.
Blair ve Finland BLAIR BUCHANAN Notary Public - State of Texas MY COMMISSION EXPIRES August 11, 2004 61 SUBORDINATION The undersigned SouthTrust Bank, an Alabama banking corporation ("SouthTrust"), the owner and holder of the lien against the property described in the foregoing Declaration of Condominium for Memorial Bend Place Condominium (the "Declaration") pursuant to that certain Deed of Trust and Security Agreement dated December 21, 2000 executed by Declarant in favor of John R. Brodie, as trustee for SouthTrust, and recorded at Clerk's File Number U796898 in the Official Public Records of Real Property of Harris County, Texas (as amended, the "Deed of Trust"), hereby subordinates all liens and security interests held by SouthTrust to such Declaration, provided that (i) SouthTrust does not subordinate the lien of the Deed of Trust to any lien created by such Declaration including, without limitation, the liens created by Section 11.H of the Declaration, and (ii) nothing contained herein shall modify or amend the terms and provisions of the Deed of Trust or the other documents executed in connection therewith as between the Declarant and SouthTrust.
SOUTHTRUST BANK, an Alabama banking corporation By: E твое John R. Brodie Group Vice President STATE OF TEXAS COUNTY OF HARRIS ) Before me a Notary Public in and for the State of Texas, on this day personally appeared John R.
ma banking corporation By: E твое John R. Brodie Group Vice President STATE OF TEXAS COUNTY OF HARRIS ) Before me a Notary Public in and for the State of Texas, on this day personally appeared John R.
Brodie, as Group Vice President of SouthTrust Bank, an Alabama banking corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed said instrument as the act and deed of such corporation, for the purposes and consideration therein expressed, and in the capacity therein stated.
Given under my hand and seal of office this 10th day of May, 2004.
[SEAL] W 1232114 D. MARIE GIESEN MY COMMISSION EXPIRES October 11, 2005 Notary Public in and for the State of Texas 11.-11-05 My Commission expires: D. Marie Giesen Name (printed) OFFICE OF BEVERLY B. KAUI COUNTY CLERK *RRIS C CONDOMINIUM ROI SO The AM18820Ata FILM CODE Part I: Part II: Part III: Part IV: EXHIBIT "B" (to the Declaration) CONDOMINIUM PLAN Legal Description Site Exhibit Plan of each Building (including Units) Percentage Ownership CG:MemorialBend: Declaration051104 TRACT I EXHIBIT "B" (to the Declaration) PART I: Description of Land All of ALEXAN MEMORIAL BEND SEC. 1, a subdivision of 4.6255 acres out of the George Bellows Survey, Abstract 3, in the City of Houston, Harris County, Texas, according to the plat thereof filed for record under Film Code No. 487022 of the Map Records of Harris County, Texas.
TRACT II All of ALEXAN MEMORIAL BEND SEC. 2, a subdivision of 0.7501 acres out of the George Bellows Survey, Abstract 3, in the City of Houston, Harris County, Texas, according to the plat thereof filed for record under Film Code No. 529029 of the Map Records of Harris County, Texas.
CG:MemorialBend:Declaration051104 OFFICE OF BEVERLY B. KAUFMAN
rris County, Texas, according to the plat thereof filed for record under Film Code No. 529029 of the Map Records of Harris County, Texas.
CG:MemorialBend:Declaration051104 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK. HARRIS COUNTY, TEXAS CONDOMINIUM RECORDS OF COUNTY CLERK 188219 FILM CODE MEMORIAL BEND PLACE CONDOMINIUM THIS IS PAGE 32 OF 72 PAGES REDUCTION 24X CAMERA DESIGNATION MRGI CG:MemorialBend: Declaration051104 EXHIBIT "B" (to the Declaration) Part II: Site Exhibit EXHIBIT "B" (to the Declaration) Part IV: Percentage Ownership Interest CG:MemorialBend:Declaration051104 1 EXHIBIT "B" (to the Declaration) PART IV Condominium Ownership Ownership Unit No.
Interest 101 0.770 102 0.770 103 0.770 104 0.770 105 0.770 106 0.770 201 0.770 202 0.770 203 0.770 204 0.770 205 0.770 206 0.770 301 0.673 302 0.673 303 0.673 304 0.673 305 0.673 306 0.673 307 0.673 308 0.673 309 0.673 310 0.673 311 0.673 312 0.673 401 0.924 402 0.924 403 0.477 404 0.477 405 0.477 406 0.477 407 0.477 408 0.477 409 0.477 410 0.477 411 0.477 412 0.477 413 0.477 414 0.477 415 0.477 416 0.477 501 0.673 502 0.673 503 0.673 504 0.673 505 0.673 506 0.673 507 0.673 508 0.673 509 0.673 510 0.673 511 0.673 512 0.673 Exhibit B Page 1 Part IV EXHIBIT "B" (to the Declaration) PART IV Condominium Ownership Ownership Unit No.
Interest 601 0.673 602 0.673 603 0.673 604 0.673 605 0.924 606 0.924 701 0.673 702 0.673 703 0.673 704 0.673 705 0.673 706 0.673 707 0.673 708 0.673 709 0,673 710 0.673 711 0.673 712 0.673 713 0.673 714 0.673 715 0.673 716 0.673 717 0.913 801 0.770 802 0.770 803 0.770 804 0.770 805 0.770 806 0.770 901 0.770 902 0.770 903 0.770 904 0.770 905 0.770 906 0.770 907 0.770 1001 0.770 1002 0.770 1003 0.770 1004 0.770 1101 0.770 1102 0.770 1103 0.770 Exhibit B Page 2 Part IV EXHIBIT "B"
0.770 806 0.770 901 0.770 902 0.770 903 0.770 904 0.770 905 0.770 906 0.770 907 0.770 1001 0.770 1002 0.770 1003 0.770 1004 0.770 1101 0.770 1102 0.770 1103 0.770 Exhibit B Page 2 Part IV EXHIBIT "B" (to the Declaration) PART IV Condominium Ownership Ownership Unit No.
Interest 1201 0.924 1202 0.924 1203 0.673 1204 0.673 1205 0.673 1206 0.673 1207 0.673 1208 0.673 1209 0.673 1210 0.673 1211 0.673 1212 0.673 1301 0.673 1302 0.673 1303 0.673 1304 0.673 1305 0.673 1306 0.673 1307 0.673 1308 0.673 1309 0.673 1310 0.673 1311 0.673 1401 0.770 1402 0.770 1403 0.770 1501 0.770 1502 0.770 1503 0.770 1504 0.770 1505 0.770 1506 0.770 1507 0.770 1601 0.770 1602 0.770 1603 0.770 1604 0.770 1701 0.770 1702 0.770 1703 0.770 1704 0.770 1705 0.770 1706 0.770 1801 0.770 1802 0.770 1803 0.770 1804 0.770 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK, HARRIS COUNTY, CONDOMINIUM RECORDS OF COUN FILM CODE 188258 MEMORIAL BEND PLAC CONDOMINIUM THIS IS PAGE 71 OF 72 PAG REDUCTION 24X CAMERA DESIGNATIO Exhibit B Page 3 Part IV 1.
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EXHIBIT "C" (to the Declaration) EASEMENTS AND LICENSES The Declarant's right to construct underground utility lines, pipes, wires, ducts, tubing, conduits and other facilities across the condominium property for the purpose of furnishing utility and other services to the Condominium.
The Declarant's right to grant easements to public utility companies for the purpose of furnishing utility and other services to the Condominium.
Unrecorded leases, licenses, or permits affecting the common elements of the Buildings.
Any and all Easements and Licenses set forth in the Declaration and By-Laws of Memorial Bend Place Condominium as filed for record in the Condominium Records of Harris County, Texas.
of the Buildings.
Any and all Easements and Licenses set forth in the Declaration and By-Laws of Memorial Bend Place Condominium as filed for record in the Condominium Records of Harris County, Texas.
Easements and building setback lines as shown on plat of Alexan Memorial Bend, Section 1, filed for record under Film Code No. 487022 of the Map Records of Harris County, Texas.
Easements and building setback lines as shown on plat of Alexan Memorial Bend, Section 2, filed for record under Film Code No. 529029 of the Map Records of Harris County, Texas.
An easement 10 feet in width for the purpose of maintaining and operating a gas pipe line and appurtenances thereto along a portion of the Easterly and Northeasterly property lines, granted to United Gas Corporation by instrument recorded in Volume 6544, Page 504 (C394315) of the Deed Records of Harris County, Texas.
An easement 10 feet in width and 84.5 feet in length located along a portion of the easterly and southeasterly property lines together with an unobstructed aerial easement 5 feet wide from a plane 20 feet above the ground upward, located west of and adjoining said 10 feet wide easement, the exact location of which is more particularly located in instrument granted to Houston Lighting and Power Company recorded in Volume 6603, Page 280 of the Deed Records of Harris County, Texas.
An easement 10 feet in width projecting in a northeasterly direction from the above described easement, and an unobstructed aerial easement centered thereon 20 feet wide from a plane 20 feet above the ground upward, the exact location of which is more particularly located in instrument granted to Houston Lighting & Power Company recorded in Volume 6603, Page 280 of the Deed Records of Harris County, Texas.
pward, the exact location of which is more particularly located in instrument granted to Houston Lighting & Power Company recorded in Volume 6603, Page 280 of the Deed Records of Harris County, Texas.
CG:MemorialBend: Declaration051104 1 10. Existing Houston Lighting and Power Company power line along the southerly 11.
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portion of the east property line, as reflected by sketch No. AB 19129-H shown In instrument recorded in Volume 6603, Page 280 of the Deed Records of Harris County, Texas.
An easement 10 feet in width projecting in a general Easterly direction from the easement described immediately preceding, and nearly through a portion of the center line of the extreme 30 foot by 140 foot strip of the Subject property, and an unobstructed aerial easement centered thereon 20 feet wide from a plane 20 feet above the ground upward, exact location of which is more fully shown in the instrument granted to Houston Lighting & Power Company recorded in Volume 6930, Page 343 of the Deed Records of Harris County, Texas.
Water line easement 10 feet in width transversing subject property as reflected by the plat recorded in Volume 144, Page 62 of the Map Records of Harris County, Texas, as partially abandoned by City of Houston, Texas Ordinance No.
2002-742 filed for record under Harris County Clerk's File No. W088391.
Sanitary Sewer easement 10 feet In width located along the easterly portion of subject property as reflected by the plat recorded in Volume 144, Page 62 of the Map Records of Harris County, Texas.
Building Set Back Line 10 feet in width along Verdi Drive as reflected by the plat recorded in Volume 144, Page 62 of the Map Records of Harris County, Texas.
Building Set Back Line 35 feet in width along the Northerly property line as
idth along Verdi Drive as reflected by the plat recorded in Volume 144, Page 62 of the Map Records of Harris County, Texas.
Building Set Back Line 35 feet in width along the Northerly property line as reflected by the plat recorded in Volume 144, Page 62 of the Map Records of Harris County, Texas.
Texas Natural Resource Conservation Commission Innocent Owner/Operator Program Certificate dated June 8, 2001, filed for record under Harris County Clerk's File No. V174101.
Memorandum of Contract dated January 23, 2003 by and between Southwestern Bell Telephone Company and TCR Memorial Bend Holdings Limited Partnership filed for record under Harris County Clerk's File No. V606983.
Memorandum of Agreement dated October 5, 2001, by and between Texas Cable Partners Ltd. d/b/a Time Warner Cable Houston Division and TCR Memorial Bend Holdings Limited Partnership flied for record under Harris County Clerk's File No. V610478.
Letter Agreement dated March 6, 2002, by and between Goldfields Enterprises, Inc. and TCR Memorial Bend Holdings Limited Partnership filed for record under Harris County Clerk's File No. V647535.
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Agreement with Reliant Energy HL&P for installation, operation and maintenance of underground/overhead electric service distribution system as set forth in instrument filed for record under Harris County Clerk's File No. V867858.
Easement Conveyance to the City of Houston for 10 foot waterline easement and 10' X 20' water meter easement as set forth in instrument filed for record under Harris County Clerk's File No. W042742.
An easement for drainage purposes extending a distance of 15 feet on each side of the center line of all natural water courses, as reflected by plat, filed for record
County Clerk's File No. W042742.
An easement for drainage purposes extending a distance of 15 feet on each side of the center line of all natural water courses, as reflected by plat, filed for record under Film Code No. 487022 of the Map Records of Harris County, Texas.
An easement for drainage purposes extending a distance of 15 feet on each side of the center line of all natural water courses, as reflected by plat, filed for record under Film Code No. 529029 of the Map Records of Harris County, Texas.
Building setback line(s) set forth in Agreement for Restrictions filed for record under County Clerk's File No. U818858 of the Official Public Records of Real Property of Harris County, Texas.
Terms, conditions and stipulations of any and all unrecorded Lease Agreements, amendments and supplements thereto, existing with the tenants in possession, whether written or oral.
CG:MemorialBend: Declaration051104 3 OFFICE OF BEVERLY B. KAUFMAN COUNTY CLERK, HARRIS COUNTY, TEXAS CONDOMINIUM RECORDS OF COUNTY CLERK 188259 FILM CODE MEMORIAL BEND PLACE CONDOMINIUM THIS IS PAGE 71 OF 72 PAGES REDUCTION 24X CAMERA DESIGNATION MRGI ANY PROVISION HEREIN WHICH RESTRICTS THE SALE, RENTAL DR USE OF THE DESCRIBED REA PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND LINENFORCEABLE UNDER FEDERAL LAW THE STATE OF TEXASI COUNTY OF HARRIS S I hereby certify that this instrument was FILED in File Number Sequence on the date and at the time stamped hereon by me; and was duly RECORDED, in the Official Public Records of Real Property of Harris County Texas on MAY 13,2004 LI Beulely B. Kaufman COUNTY CLERK HARRIS COUNTY TEXAS ANY PROVISION HEREIN WHICH RESTRICTS THE SALE, RENTAL, OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR RACE UNENFORCEABLE UNDER FEDERAL LAW.
IS INVALID AND