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HomeMy WebLinkAboutMiscellaneousu~acil~L ~l:v~`®P ~~ ~~~uP LG°~~t'C~~ C~[~ T('~31~1GJ~GAIDT!'~1Q~ P.®. Hox 9249 203 Holleman Drive East College Station, Texas 77840-9249 ~ +, t( gQ 'p/~ _ 4! 1 f C~ JOO MO. l.~, °''~ ,gyp ( g 693- 9 ATTtA1 ~~ ~ . Aa: TO ~ ~~~- ~ ~ ~~ WE ARE SENDING YOU ^ Attached - ^ Undecseparate cover via the following items: ^ Shop dtawirsgs ^ Prints D Plans ^ Samples ^ Specifications ^ Copy of letter ^ Change order D COPIES DATE NO. DESCRiPT10N . , THESE ARE TRANSMITTED as checked below: for approval D Approved as submitted ^ Resubmit copies for approval ^ For your use ^ Approved. as noted ^ Submit copies for .distribution ~- O As requested ^ .Returned for corrections ^ Return corrected prints ^ For review and comment ^ O FOR .BIDS.°DUE 19 ^ PRINTS RETURNED AFTER LOAN TO US REMARKS COPY TO ~~ u __~-..~ --. r ~ wsA i1~Nr ~sflNr w of enu_ . ~~f .. _ c% i'' t E n.. ~ t i ~.... L ~~ _.., ..i7 ... f`k., ~ l LL _ '' E /....s ~ _>~ ~ v s_ ._._ 4 t E '~ ~ C 9 C t ... / J1 s - i ~ - u ..__ _ ..__ ..__ c_.. _. ...,. l t ~- W ~ F . , _ ~ ~ ~F ~-tz .~ 1 , q , r ~ R .~ - 1' ! w ~ _- ~ ~: r ^=.tr t _. Z'y -£~, r~ - ~ ~ a -- ~ -si.. a v t ,..i i ~ :. ~_. ~ c ~ ,.rte ~. -~ L =+ _ s a v ~ - - - v ~! __. .. _ -. v 4 .~ .. ...3 F~ __ _ _ - _. ~ J _ - ~. _ . .~ ._ _ ~ _ ..~ ,_.. _ _ r_ a. _. _ ., _..~ _ t _ _.. _ . 3 , _ ,_ _ _.. i i ._ s_. _ .... , s ._ . , _ ~ . . ',i n _ "'y t s .a .e .._tir _~~~_-.-.._ „ v v .. _ , { v . .z.. _ .x_. -~~i r ~ ~ i _ ~_ s~ ~ i y ._ t. i.r _~ _ ....a _ . _. _v _= ._ ._ ._ ..._ 3. 1 t ./~ .a. _ L .._ __ ~ ~ ._ _ ti __ _ .. _. £, J uth~ ?3 (.g . ' ~ - ~ ~ ef~ v c- ~. € ~ a _ z .a. ~., . _ _ - R .. __ ~ r _ ~. ._ r .~. ~ _ s ~ t i•. t .. :. . t®~t~ l CHECKLIST FOR FINAL PLATS Requirements based on field survey and marked by monuments and markers: / 1. Drawn on 24" x 36" sheet to scale of 100' per inch. ~" 2. Name & address of subdivider, recorded owner, planner, engineer and surveyor. 3. Name & address of all lenders on the property. Lb" 4. Name & address of all easement holders. 5. Proposed name of subdivision (not spelled or pronounced similarly to any other subdivision in Brazos County, Texas). 6. Date of preparation, scale in feet and north arrow. ~" 7. Application fee. ^ Approved construction documents on 24" x 36" sheets. 9. Paid tax certificates-from City of College Station, Brazos County and the C.S.I.S.D. 10. Total area intended to be developed. 11. Subdivision boundary lines indicated by heavy lines. (~ 12. Certificate of Ownership & Dedication; Certificate of Surveyorship and/or Engineer; Certificate of City Engineer; Approval of Commission; Approval of City Council; Certificate of the County Clerk. (Owner(s)' signature(s) must be in place before taking plat to P&Z for consideration). L°I 13. Number of lots. L~" a. number of lots by Zoning District. b. average acreage of each residential lot by Zoning District. P.r 14. Approximate area of street right-of--way. ~ 15. Proposed parkland dedication. '~I(~ 16. Requested oversize participation items, if any. l~ 17. Location of the One Hundred Yr. Floodplain according to the most recent available date. ~~' 18. If more than 1 sheet, an index sheet showing entire subdivision at a scale of SOQ feet per inch. ~ 19. Parkland Dedication information. 20. Exact location, dimensions, name and legal description of all existing or recorded streets, alleys, reservations, easements or other R.O.W. within the subdivision, intersecting or contiguous with boundary or forming boundary with accurate dimensions, bearings or deflection angles and radii, area, center angle, degree of curvature, tangent distance and length of all curves. ^ ~ 11. Same information for proposed streets, alleys, etc. as preliminary plats. (~ 22. Lot corner markers and survey monuments (by symbol) and tied to basic survey date. Street, alley, and sidewalk plans, profiles and sections, with specifications and detail cost estimates. 24. Sanitary sewer plat with 2 foot contours, plan and profile lines, showing depth and grades, with cost estimates. 25. Water line plat showing fire hydrants, valves, etc. with specifications and a detailed cost estimate. 26. Storm drainage system plat with 2 foot contours, street lines, inlets, storm sewer and drainage channels, with profiles and sections, and showing drainage and runoff areas, and runoff based on 5, 10, and 25 year rain intensity. Detail drainage structure design and channel lining design if used, with specification and detail cost estimate. 27. Street lighting plan showing location of lights, design, and with specifications detail cost estimate. 28. Submit a statement addressing any differences between the final plat and approved Master Preliminary Plat & Plan. 29. Indicate any variances requested and reasons for same. f«nss~plmsVnlplall4-94 MEMORANDUM TO: PLANNING AND ZONING COMMISSION FROM: Veronica J.B. Morgan, Asst. City Engineer DATE: July 27, 1995 RE: FINAL PLAT - SOUTHWOOD PLAZA PHASE II -Proposed replat of Lot 4H, Block 15 This plat was reviewed at a Presubmission Conference on Wednesday, July 19, 1995. At that meeting, several comments were made with regard to the condominium agreement and renuesting general notes on the plat for parking and signage. Staff recommends approval with the Presubmission Conference comments. ~ /r ~ .~ ~~ ~~~ ~~ `~ ~~f e ~c o ~~ MICHAEL R. HOELSCHER T r 1021 University Drive East, Suite 102 -Hoard Certified~vil Trial law _ Fi L~ /~OR F-i _ Pos[ Office Drawer DT Texas Board of Legal Specializaton L 1 vl 1 \L College Station, Texas 77840.2120 CULLY LIPSEY ATTORNEYS and COUNSELORS (409) 846-4726 Hoard Certified- AT LAW Fax (409) 8468725 Commercial Real Estate Law, A Professional Corporation Rcsidcntial Ratl Estate law and - - Farm and Ranch Kcal Estate law Texan Board of Legal Specialization O.E. (Ed) ELMORE Board Certified- r~ Residrntial Real Estate law and ALtgust G, 1995 Fatm and Ranch Real Estate law Tcxas Board of Legal Specializarion SkIANNON CROWE Mr. Gregory K. Taggart Municipal Development Group :203 Holleman Drive East College Station, Texas 77840 Dear Greg:. Enclosed is a copy of .the. Condominium Declaration for the final plat of Southwood Plaza Phase Two, which you are handling for Dave Kallstrom. You will need to advise the City that the Condominium Declaration will be signed and filed immediately after the pint,. so that you will .not be able to note the volume and page of .the Declaration on the final plat. It is necessary to file the Declaration after the plat, because the Declaration only .takes effect if the condominium regime is established by filing of the :plat. If I can answer any questions for representatives of the City if they question that, I .:will be happy to da so. Hopefully, merely having a copy of the proposed .Declaration will .suffice. If it is necessary, we could deliver the executed Declaration to them to be filed by them immediately after they file the plat.. However, in no event, will. you be able to note the volume and page on your final .plat. cerely yours, ~- ~;j , CULLY LI SEY CL/la ~.,~ Enclosure cc: Mr. Dave Kallstrom HOELSCHER LIPSEY ~,~---~ ~~ .DECLARATION WHEREAS, KALLSTROM COMMERCIAL, INC. PROFIT SHARING PLAN. (referred to as "Declarant") is the owner of all of the real property, including the land, all improvements and structures on the property, and all easements, rights,' and appurtenances belonging to-the property that is located in the City of College Station, County of Brazos, State of Texas (referred to as the "Property"), mare .particularly described in Exhibit A attached to this declaration and incorporated by reference the same as if fully copied and set. forth at length.. WHEREAS, Declarant. submits the Property to a condominium regime established by the Condominium Act, Property Code Sections 81.001 et seq. WHEREAS, the Property constitutes a condominium project within the meaning of the Condominium Act. WHEREAS, it is the intention and desire of Declarant to establish by this Declaration a plan of ownership for the condominium project (referred to as "Project"), the plan to consist of individual ownership of Units other areas as rn+~re particularly described in Exhibit B, attached to this Declaration and incorporated by reference the same as if fully copied and set forth at length, and co-ownership of the remaining property (referred. to as the "Common Elements"), snore particularly described in Exhibit C, attached to this Declaration and incorporated by reference the same as if fully copied and set forth at length. WHEREAS, it is Declarant's intention to impose on the Project .mutually beneficial restrictions for the benefit of all Units and the Owners of the Units. NOW, THEREFORE, Declarant declares that the Project is held and shall be .held, conveyed, hypothecated,.. encumbered, leased, rented, used, occupied, and improved subject to the following covenants, conditions, and restrictions, all of which. are declared and agreed to be in furtherance of a .plan for the improvement of the Property and the division of the Property into Units, and all of which are established and. agreed on for -the purpose of enhancing and .perfecting the value, desirability, and attractiveness of the Project and every part of the Project. All of the covenants, conditions, and restrictions shall run with the, Property and .shall be binding on all. parties having or acquiring any right, title, or interest in or any part of the Property and shall be for the benefit of each Owner of the Projector any interest in the. Project and shall inure to the benefit of and be binding on each successor in interest of the .Owners.. ..DECLARATION RE/KALLSTROM.DECaa 1 ARTICLE 1 DEFINITIONS s Unit ~~ 1.01. Unit means an enclosed space consisting of one or more rooms occupying all or part of a floor in a building of one or more, floors. regardless of whether it is designed for office, for the operation of any business, or for any other ;' type of independent use,. provided. it has a direct exit to a given common space leading to a thoroughfare... Articles. 1.02. ARTICLES means the Articles of Incorporation of the Council that are or shall be filed in the Office of the Secretary of State of the State of Texas. Board- 1.03. BOARD means the Board of Directors of the Council. Bylaws 1.04. BYLAWS .means. the Bylaws. of the Council. and amendments. and amendments to the Bylaws .that are or shall be adopted by the Board. Condominium. 1.05. CONDOMINIUM -means the separate ownership. of single- units or Urnts in a multiple-unit. structure or structures with common elements. Common Elements 1.06. COMMON ELEMENTS means all elements of the Project that are subject to undivided ownership by the Owners, that. is, the entire Project except the separately owned Units. Council 1.07. COUNCIL means the Albertson's Place Retail Center Council of Owners, Inc., a corporation organized under the Texas Non-Profit Corporation Act for the management of the Project, the membership of which consists of all of the Owners within the Project. DECL~U2ATION 2 RE/KAi,LSTROM.DECaa ..Council of Owners 1.08. COUNCIL OF OWNERS means all of the owners within the Project.. Declaration 1.10. DECLARATION means this Declaration document and all that it contains. Governing Instruments 1.12; GOVERNING INSTRUMENTS means the Declaration for the Project and the Articles and' Bylaws of the Council. . Manager 1.14.: ML~NAGER means the person or corporation, if any, appointed by the rc Board to manage the Project. ~ ` Member Ic l . 15. MEMBER means every person or entity entitled to membership in the ''~ Council as provided in .this Declaration. '3 1; Owner(s) e t 1.16.. OWNER(S) means any person, firm, corporation, partnership, ~ association, trust,- or other legal entity or -any combination of persons or entities y that own an Unit or Units within the Project. 7 Person I1 '~ 1.17. PERSON means an individual, firm, corporation, partnership, ~ association, trust, other legal. entity, or any combination of persons or entities. Project 1.18. PROJECT means the entire parcel or the Property described in Exhibit A, including the land, all improvements and structures on the Property, and ,all easements, rights, and appurtenances belonging to the Property that are divided or are to be divided into Units to be owned and operated as a Condominium. DECLAFtE1TION RE/KALLSTROM DECa 3 . a ° i .1.19. RIGHT OF FIRST REFUSAL means the right of any owner to purchase a Unit from another owner on the exact terms and time stated in an offer from a third party to purchase the Unit for sale, as provided in Paragraph 5.05 hereof. Rules 1.20. RULES means and refer to any Rules and Regulations for the Project adopted by the Council pursuant to Paragraph 3.05(b) of this Declaration. ARTICLE 2 THE PROPERTY Property Subject to Declaration -2.01. All the real property described in Exhibit A to this declaration, including the land, all .improvements. and structures on the property, and all easements, rights, and appurtenances belonging to the property (referred to as the. "Property") shall be subject to this Declaration. Exclusive Ownership and Possession 2.02. Each Owner shall be entitled to the exclusive ownership and possession of the Owner's Unit. Any Unit may be jointly. or commonly owned.. by more than one Person. The boundaries of the Unit shall be and are the interior surfaces of the perimeter. walls, floors, ceilings, and the exterior surfaces of balconies and terraces. An Owner shall not be deemed to 'own the- utilities running through the owner's Unit that are utilized for or serve more than one Unit, except as a tenant in common with the other Owners. An Owner shall be deemed to own and :shall have the exclusive right, to .paint, repaint, tile, wax, - paper, or otherwise refinish and, decorate the interior surfaces of the walls, floors, ceilings, .windows,: and doors bounding the owner's Unit. Common Elements 2.03. Each Owner shall be entitled to an undivided interest in the Common Elements described in Exhibit C in the. percentage expressed in .Exhibit C. The percentage of the undivided interest of each Owner in the Common Elements, as expressed in Exhibit. C, shall have a permanent character and shall not be altered without the consent of all Owners, expressed in an amended, duly recorded Declaration. The percentage of the .undivided interest in the Common Elements shall not be separated ffom the Unit to which it pertains and shall be deemed to be conveyed or encumbered or released from liens with the Unit even though the DECLARATION RE/KALLSTROM.DECaa L~ _., ~ _ _. /, ,- v, interest is not expressly mentioned or described in the conveyance or other instrument. Each Owner may use the Common Elements in accordance with the purpose for which they are intended as long as the lawful rights of the other Owners are not hindered or encroached on. Partition of Common Elements .~ 2.05. The Common Elements shall remain undivided and shall not be the object of an action for partition or division of ownership so long as the Property rerazains a Condominium Project. In any event, all mortgages must be paid prior to the bringing of an action for partition or the consent of all mortgagees must be ' obtained. Nonexclusive Easements 2:06. Each Owner shill have a .nonexclusive easement for the use and enjoyment of the Common Elements and. for ingress, egress, and support over-and through. the Common Elements. These easements shall. be appurtenant to and ..shall pass with the title to each Unit and shall be subordinate. to the exclusive .easements granted. elsewhere in this Declaration, as well as to any rights reserved to the Council to regulate time. and manner. of use,. to charge reasonable admission fees, .and to perform its. obligations under this Declaration. Other Easements.: 2.07. The Council may grant to third parties easements in, on, and over the Common Elements- for the purpose of constructing, installing, or maintaining necessary utilities and services. Each Qwner, in accepting. the owner's deed to the Unit, expressly consents to such easements. No such easement may be' granted,. however, if it would. interfere with any exclusive easement or with any Owner's use, occupancy, or enjoyment of the Owner's Unit. Easements for Maintenance of Encroachments 2.08. None of the rights and obligations of the Owners created in this Declaration or by the deeds granting the Units shall be altered in any way by ..encroachments due to settlement or shifting of structures or any other cause. .There shall be valid easements for the maintenance of such encroachments so long. as they shall exist; provided, .however, that in no event shall a valid easement for an encroachment be .created in favor of any Owner if the encroachment occurred. due to the willful conduct of the- Owner. DECLARATION RE/KALLSTROM.DECaa 5 -----~ AIr£ICLE 3 COUNCIL. OF OWNERS Council `~ 3A l . The Council of Owners, organi2ed as a nonprofit corporation under the Texas Non-Profit Corporation Act, is charged with the duties and invested with the powers prescribed by law and set forth in this Declaration and in .the Council's Articles and Bylaws. Membership 3.02. Membership in the Council is automatically granted to the Owner or Owners of each Unit in the Project. On the. transfer of title to any Unit, the membership of the transferor automatically ceases and each new Owner becomes a Member. .Voting Rights 3.03. Voting shall. be on a percentage basis. The Owner of each Unit. is entitled to a percentage of the total vote equal to the percentage interest that the Owner's Unit bears to the entire Project as assigned in Exhibit B. If an Unit has more than one Owner, the aggregate vote of the Owners of the Unit may not exceed the percentage of the total vote .assigned to the Unit. Membership 1Vleetings~ 3.44. Meetings of the Members shall be called, held, and conducted. in accordance. with the .requirements and procedures set forth in the Bylaws. General Powers and Authority i 3.05. The Council :shall have all of the powers of a nonprofit. corporation established under Texas law, subject only to the limitations contained in this Declaration and in the other Governing Instruments. The Council may perform all acts that -may be necessary for, or incidental to, the performance of the obligations and duties imposed on it by this Declaration and the other Governing Instruments. The powers of the Council shall include, but are not limited to, the .following: (a) The power to establish, fix, and levy.assessments against the Owners in .accordance with the procedures and. subject to the limitations set forth in Article 4 of this Declaration. DECLARATION RE/KALLSTROM.DECaa 6 o v ~ °` jr - , (b) The power to adopt reasonable operating: rules,'governing the use of the Common; Elements and any facilities located on the Common Elements, as well as the use of any other Council property. (c) The right to institute and maintain actions for damages. or to restrain any actual or threatened breach of any of the provisions of ,the Governing Instruments or Council Rules either in its own name, on its own behalf, or on .''" behalf of any. consenting Owner. (d) The right. to discipline Members for violation of any of the provisions of the Governing Instruments or Council Rules by suspension of the violator's voting. rights or privileges for use of the Common Elements, or by imposition of monetary penalties,.subjectto the following limitations: (i) The accused Member must be given an opportunity to be; heard with respect to the alleged violation. (ii) Any suspension of privileges or imposition of monetary penalties shall be reasonably, related to the Member's .violation. (e) The power to delegate its authority, duties, and responsibilities, through the Board of Directors, to such committees,. officers, or employees as are permitted to be retained under the Governing Instruments. (f) The right, through .its agents or employees,.. to enter any Unit when ...necessary in connection with any maintenance, landscaping, or construction for which -the Council is responsible. Such entry shall be made with as little inconvenience to the Owner as is practicable and any damage caused by the entrance shall be repaired by the Council at its own- expense. Duties of the Council ~~ 3.06. In addition to the duties delegated to the Council- or its agents and employees- elsewhere in these Governing. Instruments, the .Council. shall be responsible for the following: (a) Operation and maintenance of the Common Elements and the facilities located on the Common Elements. This duty shall include, but shall not be limited to, exterior gainting, maintenance, repair, and landscaping of the Common Elements and of the furnishings and equipment for the Common Elements as the Board shall determine are necessary and proper. .. (b) Acquisition of and payment from the maintenance fund for the following: DECLARATION RE/KALLSTROM.DECaa 7 _-----~ A _.. _ ..~: ~ ffi I r~ % ' ~~+~~ ` (i) Water, sewer, garbage, electrical, telephone, -gas, elevator, and other necessary utility service for the Common Elements and, to the extent not ,:" separately metered and charged, for the Units. (ii) A policy or policies of fire insurance with extended coverage endorsement for the full insurable replacement value of the .Units and Common Elements payable as provided in Article 6 of this Declaration, or such- other. fire and casualty insurance as the Board shall determine gives substantially equal or ~~ greater protection to the Owners and their mortgagees, as their res ective ~~ interests may appear.. P u ,,< (iii) A policy or policies insuring the Board and the Owners and/or the Council of Owners against any liability to the public or to the Owners, their tenants- and invitees, incident to the ownership and/or use of the Project, including the personal liability exposure of the Owners. Limits of liability under such insurance shall not be less than $1,000,000.00 for any one person injured, '; $1,000,000.00 for any one accident, and $300,000.00 for property damage. The limits and coverage shall. be reviewed at least annually by the Board- and increased in its discretion. The policy or policies. shall be issued on a comprehensive Liability basis and shall provide cross-liability endorsement in which the rights of named insureds -under the policy or policies shall- not be .prejudiced as respects his, her, or their action against another named insured. (iv) Workers'. compensation insurance to the extent necessary to comply with any aPPlicable laws. (v} The services of personnel that the 13oard shall determine to be necessary or proper -for. the operation of the Common Elements. (vi) 1-egal and accounting services necessary or proper for the operation of the Coanmon Elements. or the enforcement of this Declaration. (c) Preparation and distribution, on a regular basis, of financial statements to the Members in accordance with the following: O A pro forma operating. statement for each fiscal year shall be distributed not less than 30 days before the beginning of the fiscal year. (ii) A balance sheet as of an accounting date that is the last day of the month closest in time. to six (6) months from the date. of closing of the first sale of an Unit in the Project, and an operating statement for the period from the date of the first closing to the acc©unting date, shall be distributed within 60 days- after the accounting date. This f operating statement, shall include. a schedule of assessments received and receivable identified. by the numbers of the Project Units and the names of the persons assessed.. DECLARATION RE/KALISTROM.DECaa, 8 (iiiJ A balance sheet as of the last day of the Council's fiscal ear and an y operatin, statement for th e fi scal year shall be distributed within 90 days after the close of th fiscal year.. (d) Maintenance of the following books and records, such books and records to b~ kept in accordance with generally aece ted accountin r P ocedures: gP (i) Financial records with a detailed account of the reeei is and e affecting the Project and its administration ands eci P xpenditure. g Eying-the maintenance and regular expenses of the Common Elements and any other expenses incurred by or on behalf o: the Project. ,; (ii) Minutes of proceedings of Members, Board of Directors, and Committees havin€ any authority of the Board of Directors.- (iii) Record of the names and addresses of all Members with voting rights. (e) Arrangement for an'annual independent audit of all books and records of the Council. Board of Directors 3.07. The affairs of the Council shall be managed and its duties and obligations performed by an elected Board of Directors. Provisions regulating the number, term, qualifications, manner of election, and conduct of meetings of the members of the Board of Directors shall be set forth in the- Bylaws of the `Council. Powers. and Duties of the Board of Directors 3.08. The Board's powers and duties shall include, but shall not be limited to, the following: (a) Enforcement of the applicable provisions of this Declaration, the Articles, M Bylaws, and any Rules of the Council.. (b) Payment of taxes and assessments that. are or could: become a lien on the t Common. Elements or a portion of the Common Elements. ( (c) Contracting for casualty, liability, and other insurance on behalf of the Council (d) Contracting for goods and services. for the Common Elements, facilities, and .interests of the Council. DECLARATION RE/KALLSTROM.DEC:Ia 9 r` i f ; (e) Delegation of its powers to such committees, officers, or employees of the Council. as are expressly authorized by the Governing.Instruments. (fl Preparation of budgets and financial. statements for the Council as prescribed in the Governing Instruments. (g) Formulation of rules of operation for the Common Elements and facilities owned or controlled, by the. Council. (h) Initiation and execution of disciplinary proceedings against Members for violations of provisions of the Governing Instruments in accordance with procedures set forth in the Governing, Instruments: (i) Authorizing the entry of any Unit as necessary in connection with construction, maintenance, or emergency repair, for the benefit of the .Common Element or the Owners in the aggregate. Limitations on Powers of Board of Directors 3.09. Notwithstanding the powers set forth in Paragraph 3.08 of this Declaration, the- Board shall be prohibited. from taking any of the following actions except. with the approval of a majority of the voting power of the Council residing in the Members:. (a) Entering into (i) a contract with a third person. under which the third person will furnish goods or services for a term longer than one year; - (ii) a contract with a public utility if the rates. charged -are regulated by the Public Utilities Commission, provided that the term shall not exceed the shortest term for which the utility will contract at the regulated rate; or (iii) prepaid casualty and/or liability insurance of not more than three years., duration, provided that the policy provides for short-rate cancellation by the insured. (bJ Incumng aggregate expenditures for capital improvements to the Common Elements in any fiscal year in excess of five percent (5%) of the budgeted gross expenses of the Council for thatfiscal year. (c) Selling during any fiscal year property of -the Council having an aggregate fair F market value. in excess of five percent (5%) of the budgeted gross expenses of the Council k for that fiscal year. DECLARATION REJI{ALI,S'I'ROM.DECaa I o (d) Paying compensation to Directors or to officers of the Council for services ,~ rf rendered in the conduct of the Council's business provided, however, that the Board may ~` cause a Director or officer to be reimbursed for expenses incurred in carrying out the . if business of the Council. - 1 ARTICLE 4 y ASSESSMENTS Covenant to Pay 4.01: The Declarant covenants and agrees for each Unit owned by it in the. Project, and each Owner by acceptance of the deed to such Owner's Unit is deemed to covenant and agree, to pay to the Council the regular and special assessments levied pursuant to .the provisions of this Declaration.. All moneys collected shall be put. into a maintenance fund to be used to defray expenses :attributable to the ownership, operation, and maintenance of common interests by the Council.. The Owner may not waive or otherwise escape .liability for these assessments by nonuse of the Common Elements or by abandonment of the Owner's Unit. Regular Assessments 4.02. Regular assessments shall be made in accordance with the following. Within 60-days. prior to the beginning of each calendar year, the Board shall estimate the net charges to be paid during that year, including a reasonable provision for contingencies and replacements with adjustments made for any expected income and surplus from the .prior year's fund. This estimated cash requirement shall' be assessed to each Owner according to the ratio of the number of Units owned by the Owner assessed to the total number of Units in the Project subject to assessment. Each Owner is obligated to' pay assessments to the Board in' equal monthly installments on or before the first day of each month.- Special Assessments 4.03.. Special. assessments shall be made in accordance with the following. If the Board .determines that the amount to be collected from regular assessments will be inadequate to defray the common expenses for the year due to the cost of any construction, unexpected repairs, replacements of capital improvements on the Common ' Elements,. or for any other reason, it shall make a special assessment for the additional amount needed. Such special assessments shall be .levied and collected in the same manner as regular assessments. 1 DECLARATION RE/KALLSTROM.DECaa 1 1 ~- -- v l~~ Limitation s on Assessments `,, 4.04. The Board may not, without the approval of a majority of the voting power of the Council residin in 1Viemb g ers other than Declarant, m ose a re ular P g annual assessment .per Unit that is more than 20 percent greater than the regular annual ' ' assessment for the preceding year, nor levy special assessments -that in the aggregate exceed five percent of the budgeted gross expenses of the Council for that year. These Iirrutatons shall not apply to a special assessment levied against an Owner to reimburse the Council for funds expended- in order to bring the Owner into compliance with the provisions of the Council's Governing: Instruments. Commencement of Assessments 4.05. Regular assessments shall cammence on the date of closing of the first -sale of an Unit in the .Project. Liability for Assessments lla 4.06. Each monthly pardon of a regular assessment and each special assessment shall be a separate, distinct, and personal debt.and obligation. of the Owner againstwhom the assessments are a sses sed. The amount of an assessm y ent not aid when due shall P be deemed to be delinquent.. I~, ' ~ Payment of Assessments on Conveyance of Unit 4.07. On the sale or .conveyance. of an -Unit, all unpaid assessments .against an O wn I', er .for the Owner sshare m the e erases to whi ~ Xp ch Articles 4.02 and 4.03. of this Declaration refer shall first be paid out of the sale price or by the. purchaser in preference over any other: assessments or charges of whatever nature, except the following:: ~~~ ',~ (a) Assessments, liens, and charges in favor of the State of Texas and any political ~t subdivision of the: State of Texas for taxes past due and unpaid on the Unit. (b) Amounts due `under mortgage instruments duly recorded. Lien and Foreclosurefor Delinquent Assessments: 4.08 The Council shall have a lien on each Unit for any delinquent assessments ' attributable- to that Unit. The Council is .authorized to enforce the lien through nonjudicial foreclosure pursuant to Property Code Section 51.002. The Owners expressly. grant to the Board a power of sale, through a trustee; designated in writing by the Board, in connection with any such liens. DECLARATION RE/KALLSTROM.DECaa l 2 ---~. ARTICLE 5 RESTRICTIONS AND COVENANTS General Restrictions on Use and Sale - ~' 5.01. The right of an Owner and the Owner's guests to occupy or use the Owner's r Unit, o to use the Common Elements or any of the facilities on the Common Elements, is. subject to -the following restrictions: " (a) No Owner sfiall occupy or use the Owner's Unit or permit the Unit or any part of it to be occupied or used for any purpose other than as a retail or office purpose. . Nothing in this Declaration shall prevent the Owner from leasing or renting out the Owner`s Unit provided that it is not for non-permissible. uses, is for a period of at least sixty (60) days, and is subject to the Council's Governing Instruments and Rules.. (b} There shall be no obstruction of the. Common Elements. Nothing shall be stored in the Common Elements without the .prior consent of the Board,. except as expressly provided for in the Declaration; or in designated: storage areas. (c) Nothing shall be-done or kept in any Unit or in the Common Elements that will increase the rate of .insurance on the Common Elements ..without the prior written consent of the Board. No Owner shall permit anything to be done or kept in the Owner's - Unlit or in the Common Elements that will result in-the cancellation of insurance on any Unit or on any part of the Common Elements or that would be in violation of any law. No waste shall be permitted in the Common Elements:-. No gasoline, .kerosene, cleaning solgents, or other flammable-liquids shall be stored in the Common Elements or in any Unit, provided, however,. that reasonable amounts in `suitable containers may be stored in the storage spaces..... (d) No sign of any kind shall. be displayed to the public. view on or from any Unit or the Common. Elements without the prior written consent of the Board, except a sign advertising the property for sale. , (e) No animals, livestock, or poultry of any kind shall be raised, bred,.. or kept in the Unit or in the Common Elements. (fl No noxious or offensive activity shall be named on in any Unit or in the Common. Elements, nor shall anything. be done in any Unit or in the Common Elements that may: be or become an annoyance or nuisance to the other. Owners. (g) Nothing shall be altered or constructed in or .removed from the Common Elements,. except on the. written. consent of the Board. DECLARATION RE/KALLSTROM.DECaa 13 ~ (h) There shall be no violation of the Rules for the use of the Common Elements, adopted by the Board and furnished in writing to the Owners. The Board is authorized to adopt such Rules. (i) No .Owner may adapt a use within the Owner's Unit which is the same or similar use, adopted by an already existing owner. or tenant of an owner. At no time shall more '~ than one unit be used for the sale'of pizza, without limiting the generality of the previous sentence. (j}The restrictions on-use contained in the Common Area Maintenance Agreement recorded in Volume 1204, page 401, Official Records, Brazos County, Texas, and the Declaration of Restrictions and Grants of Easements recorded in Volume.1204, page 362, Official Records, Brazos County, Texas, are riot superseded by this peclaration, but shall continue in force and effect against and for the benefit of the property. ~, Maintenance .5.02. Except for -those portions that the Council is required to maintain and .repair, each Owner shall, at the Owner's sole cost and expense, maintain and repair the Owner's Unit, keeping it in good condition and repair. Each Owner shall also maintain and repair those portions of the Common Elements subject to an exclusive easement appurtenant to the Owner's Unit. Damage Liability 5.03. Each Owner shall be liable to the Council for all damage to the Common. Elements or other Council property that is sustained by reason of the negligence or willful misconduct of that Owner, the. Owner's family, guests, or tenants. Exemption 5.04. Declarant shall be exempt from the restrictions. of Paragraph 5.01 of this Declaration to the extent necessary for. completion of construction, sales, or additions to the Project. Such exemption includes, but it not limited to; maintaining Units as model homes, placing advertising signs on Project property, and generally making use of the Project dots and Common Elements as is necessary to carry on construction. activity. Sale 5,05. If any Owner desires to sell his Unit,such Owner shall notify all other Owners at least 30 days prior to the time the Unit shall be offered for sale. Thereafter, if the selling owner receives an offer from a bona fide third party purchaser dealing at arm's length,. the selling Owner shall present a copy of the. third party offer to all other Owners; DECLARATION '" RE/KALLSTROM,DECaa 14 0. e 1 who shall..have 15 days after their receipt of the ..copy to exercise the Right of First Refusal. If the Right of First Refusal is not exercised, the selling owner may proceed with the sale to the third party. If the sale to the. third: party. is not consummated, the Right of First Refusal shall be enforceable as to future urchase offers. If more than one Owner P exercises the Right of First Refusal, they shall purchase the Unit proportionately. ARTICLE 6 ~;r° DAMAGE. OR DESTRUCTION Application of Insurance Proceeds ,, 6.01.: (a) If the Project is damaged by fire. or any other disaster, the insurance proceeds, except as provided in Paragraph 6.01(b) of this Declaration, shall be applied to reconstruct the Project.- (bj Reconstruction shall- not be compulsory fit comprises the whole or more than two thirds (2/3) of thebuildings an the Project as determined by the Council. In such -case and unless otherwise unanimously agreed to by the Owners, the proceeds shall be delivered pro rata to the Owners or their mortgagees, as their interest may appear, in i accordance with the percentages or fractions set forth in Exhibit B of this Declaration.. .~ Insufficient Insurance Proceeds 6.02 When the insurance proceeds are insufficient to cover the cost of reconstruction and. reconstruction is required by Paragraph 6.01 of this Declaration, the costs in excess of the insurance proceeds shall be paid by all of the Owners directly affected' by the damage,. in proportion: to the percentages or fractions assigned. to their respective Units. If any one or more of those composing the minority shall refuse to make such payments, the majority-may proceed. with the reconstruction at the expense of all the Owners benefited by the reconstruction, on proper resolution setting. forth the.. circumstances of the case and the cost of the work. The provisions of this Paragraph 6.02 may be changed by unanimous resolution of the parties concerned adopted: subsequent to the date on which a fire or other disaster- occurs. s Obtaining Bids for Reconstruction 6.03 If the Project is damaged by fire or any other disaster, the Board shall obtain firm bids, including the obligation to obtain a performance bond,.. from two or more responsible contractors to rebuild the Project in accordance with its original plans and .specifications. The Board shall also, as soon as possible after obtaining. the bids, call a special meeting of the Owners to consider the bids. If the Board fails to do so within sixty (60) days after the casualty occurs, any Owner. may obtain bids and call and conduct a meeting as provided by this Paragraph 6.03. At such meeting, the Owners may, by DECLARATION RE/KALLSTROM.DECaa lj a 6 sixty-six and two-thirds (66 2/3) percent vote, elect to reject all of the bids or by fifty-one (51) percent vote, elect to reject all the bids requiring amounts more than five hundred dollars ($500) in excess of available insurance proceeds. If all: bids are rejected, the Board shall obtain additional. bids for presentation to the Owners. Failure to reject all bids shall authorize the Board. to accept the unre~ected bid it considers most favorable. ~~~ ~:~ ARTICLE 7 RIGHTS OF BENEFICIARIES UNDER DEEDS: OF TRUST Declarant warrants that beneficiaries under deeds of trust to Units in the Project shall be entitled to the following rights. and guaranties: (a) Should any of the Council's Governing Instruments provide fora "right of first refusal," such right shall not impair the rights of a beneficiary under a first lien deed of trust to: (i) Exercise the power of sale, foreclose, or take title to an Unit pursuant to the remedies provided in the deed of trust.. 1 (ii) Accept a deed or assignment in lieu of sale or foreclosure in the event of .default by a grantor. (iii) Interfere with a .subsequent sale or lease of an Unit so acquired b the y beneficiary. (b) A beneficiary under a first Ien deed of trust ~is entitled, on request, to written ~ notification from the Council of any default in the performance by the grantor of any obligation under the Council's Governing Instruments that is not cured within sixty (60) days. (c) Any beneficiary under a first deed of trust who obtains title to an Unit pursuant to the remedies provided. in the deed of trust will not be liable for such Unit's .unpaid assessments that accrue prior to the acquisition of title to the Unit by the beneficiary. (d)` Unless at least two thirds (2/3) of the beneficiaries under first deeds of trust (bused on one vote for each first deed of trust awned) or Owners. other than Declarant give their prior written approval, the Council- shall note be entitled to: (i) By act or omission,: seek to abandon or terminate the Project. (ii) Change .the pro rata interest or obligations of .any individual Unit for the Purpose of: DECLARATION RE/KALLSTROM.DECaa 16 _ ,] ~ J d :~ '. (A) Levying assessments or charges.. (B) Allocating distributions of hazard insurance proceeds or condemnation. awards. (C) Determining .the. -pro rata share of ownership of .each Unit in the Common Elements and in the improvements in the Common Elements. (iii) Partition or subdivide any unit.. (iv) By act or: omission, seek to abandon, partition, subdivide, encumber, sell, or transfer the Common Elements. The granting of easements for utilities or for-other public purposes consistent with the intended use of the Common Elements shall not be deemed ~~ ` a transfer within the meaning of this clause. (e) In case of loss to an Unit and/or Common Elements of the Project,. use hazard insurance proceeds for losses t® any Project property (whether to Units or to the Common Elements) for other than the repair, replacement,- or reconstruction of such property, except as provided by statute. (e} All. taxes, assessments, :and charges that may become liens prior to the first mortgage under local law shall relate only to the individual Units and not to the Project as a whole... (fl 1Vo provision of the Governing- Instruments of the Council gives any Owner; or any other party, priority over any rights of a beneficiary under a first deed of trust to an Unit pursuant to -its deed of trust in the case of a distribution to such Owner of insurance proceeds or condemnation awards for losses to or taking of Units and/or the Common Elements or portions of the Common Elements. (g) Council assessments shall be large enough to provide for an adequate reserve fund for maintenance, repairs, and replacement of those Common Elements. that must be replaced on a periodic. basis.. The reserve fund .will be funded through the regular monthly assessments rather than by special assessments. - ARTICLE 8` ....GENERAL PROVISIONS k Amendment ' 8.0.1. (a) This Declaration may be amended only at a meeting of the Unit Owners at which- the amendment is :approved by the holders of at least sixty-seven (67) percent of .the ;ownership interests in the Project. DECLARATION RE/KALLSTROM.DECaa 1 ~] ,~ ,, (b) An amendment of the Declaration may not alter or destroy an Unit without the consent of the affected Owners and- the Owners' first lien mortgagees. (e) Any amendment shall be evidenced by a writing, signed and acknowledged by two Members of the Council. The amendment shall. be effective on filing in the office of the county clerk of Brazos County, Texas.. .~ Nonwaver of Remedies r 8..02. Each remedy provided for in this Declaration is separate, .distinct, .and nonexclusive. Failure to exercise a particular remedy shall not be construed: as a waiver of the .remedy. F Severability 8.03. The provisions of this Declaration shall be deemed independent and severable. The invalidity, partial invalidity, or unenforceablity of any one provision shall not affect the validity or enforceability of any other provision..: -. Binding 8.04. This Declaration, as well. as any. amendment to this Declaration, and any valid action or directive. made pursuant to it shah be binding on the Declarant and the Owners and their heirs, grantees,. tenants, successors; and assigns. lnterpretatson • -: a 8.05. The:provisions of his Declaration shall be.liberally construed and interpreted to effectuate its purpose of creating. a uniform plan for the development and operation of a Condominium Project. Failure, t® enforce any provision of this. Declaration shall not f' constitute a waiver of the right to enforce the provision or any other provision of this Declaration. Limitation- of Liability 8.06. The liability of any Owner for performance of any of the provisions of this Declaration shall terminate on sale, transfer, assignment,. orother divestment of the Owner's entire interest in the Owner's Unit. with respect to. obligations arising from and after the date of such divestment. Notices 8.07. (a) Notices provided for in ,this Declaration shall be in writing and shall be deemed sufficiently given with when delivered personally at the appropriate address. set DECLARATION RE/HALLSTROM.DECaa ~ 8 'v t forth in Paragraph 8.08(b) of this .Declaration,. or 72 hours after deposit in any United States post office box,. postage prepaid, addressed as set forth in Paragraph 8.08(b) of this Declaration. ,~; (b) Any notice to an Owner required under this Declaration shall be addressed tc the Owner at the last address for. the Owner appearing in the records of the Council or if there is none, at the address of the Project. Notice to the Council shall be addressed tc ~ the address designated by the Council by written notice all Owners. Notices to the Manager shall be addressed to the address designated by the Manager. Notices to Declarant shall be addressed to 161 Old Bridge Lake, Houston, Texas 77069-3464. Number, Gender; and Headings y 8.09. As used in this Declaration, 'the singular `shall include the plural, and the masculine shall include the feminine and the neuter, unless the context requires the ~` contrary. All. headings are: not a part of this Declaration and shall not affect the interpretation of any provision. '" Executed this instrument this day of 19 N _ '~ KALLSTROM COMMERCIAL, INC. PROFIT SHARING ..PLAN, Declarant ;A BY: ~~ David H. Kallstrom, President ~; ,~~ ~;~ ACKNOWLEDGMENT '~ STATE OF TEXAS .~' COUNTY OF BRAZOS- 'n This instrument was. acknowledged before meson the day of , 19_, by David H. Kallstrom, President, of Kallstrom Commercial, Inc.. Profit Sharing Plan. ,_ ;: ~ Notary .Public, State of Texas ,~ DECLARATION ,~ RE/KALLSTROM.DECaa 19 `~