Midtown College Station POA

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Per 1st Amended CCRs:

ARTICLE V

ASSESSMENTS AND ASSESSMENT LIENS

Section 5.1 Creation of the Lien and Personal Obligation of Assessments. Each Owner of a Property Interest by acceptance of a deed therefore, whether or not it shall be expressed in any such deed or other conveyance, covenants and agrees to pay to the Association: (i) annual assessments or charges, to be paid monthly as provided for herein or by the rules and regulations of the Association, and (ii) special assessments for capital improvements. Such assessments (collectively, the “Assessments”) are to be fixed, established and collected as provided herein. Assessments, together with such interest thereon and costs of collection thereof, as hereinafter provided, shall be a charge on Owner’s Property Interest and shall be secured by a continuing lien which is hereby created and imposed for the benefit of the Association upon the Property Interest against which each such Assessment is made. Each such Assessment, together with such interest costs and reasonable attorney’s fees, shall also constitute a personal obligation of the person or entity who was the record Owner of such Property Interest at the time of the Assessment. The personal obligation for delinquent Assessments shall not pass to successors in title unless expressly assumed by such successors; however, the lien upon the Property Interest shall continue until paid.

Section 5.2 Purpose of Assessments. The Assessments levied by the Association shall be used exclusively for the purpose of promoting the health, safety and welfare of the owners of Property Interests within the Property, paying the Operational Costs, the improvement and maintenance of the Areas of Common Responsibility and any other property owned by the Association, the construction and maintenance of any signs, advertisements or displays located in the Areas of Common Responsibility, and the performance and/or exercise of the rights and obligations of the Association arising hereunder. Assessments shall include, but not be limited to, funds to cover actual Association costs (including reasonable reserves) for all taxes, insurance, repair, replacement, maintenance and other activities as may from time to time be authorized by the Association’s Board of Directors; legal and accounting fees, and any fees for management services; expenses incurred in complying with any laws, ordinances or governmental requirements applicable to the Association or the Property; reasonable replacement reserves and the cost of other facilities and service activities, including, but not limited to, mowing grass, grounds care, sprinkler system, landscaping, and other charges required or contemplated by this Declaration and/or that which the Board of Directors of the Association shall determine to be necessary to meet the primary purpose of the Association, including the establishment and maintenance of a reserve for repair, maintenance, taxes and other charges as specified herein.

Section 5.3 Basis and Maximum Amount of Annual Assessments. (a) Until the Turnover Date, the maximum regular annual Assessment may be, but is not required to be, determined by the Declarant. In the event of a no such designation, there shall be no maximum regular annual Assessment. (b) After the Turnover Date, the Association’s Board of Directors may determine the maximum regular annual Assessment, which may be increased by an amount up to ten percent (10%) over the preceding year’s regular annual assessment solely by the Association’s Board of Directors. Any increase over and above 10% of the previous year’s regular annual assessment shall be done only by the prior written approval of sixty-six and two-thirds percent (66-2/3 %) of the outstanding Voting Units (determined pursuant to Section 3.3 hereof) held by the Members at a meeting at which a quorum is present.

Section 5.4 Special Assessments. In addition to the regular annual Assessment authorized above, the Association may levy, in any assessment year, a special Assessment applicable to that year only, for the purpose of defraying, in whole or in part, the costs incurred by the Association pursuant to the provisions of this Declaration, provided that after the Turnover Date, any such special Assessment shall have the prior written approval of sixty-six and two-thirds percent (66-2/3 %) of the outstanding Voting Units (determined pursuant to Section 3.3 hereof) held by the Members at a meeting at which a quorum is present.

Section 5.5 Notice and Quorum for any Action Authorized Under Sections 5.3 and 5.4. When written notice of any meeting called for the purpose of taking any action authorized under Sections 5.3 and 5.4 hereunder is required, such written notice shall be given to all Members not less than ten (10) days or more than twenty (20) days in advance of such meeting. At such meeting, the presence of Members or of written proxies entitled to cast sixty percent (60%) of all the Voting Units entitled to be cast by the Members of the Association shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirements and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting.

Section 5.6 Uniform Rate of Assessment. Both the regular annual and special Assessments shall be fixed at a uniform rate for all Ownership Units. Regular annual and special Assessments shall commence and be due in accordance with the provisions of Section 5.7 hereof. Each Owner shall pay one hundred percent (100%) of the established Assessment for each Property Interest based on the assigned number of Ownership Units. Until the Turnover Date, the Association, Declarant and each affiliate of Declarant shall be exempt from paying Assessments on any Property Interest owned by the Association, Declarant or an affiliate of Declarant.

Section 5.7 Date of Commencement of Annual Assessments; Due Dates. (a) The obligation to pay regular annual assessments on a monthly basis as provided for herein shall commence when a Property Interest is no longer owned by the Declarant or an affiliate of the Declarant. Assessments shall be due and payable on a monthly basis unless otherwise designated by the Association. (b) Prior to the Turnover Date, Declarant shall pay any deficiency resulting in the event the cost of maintenance exceeds the amount of the Assessments received from the Owners; provided, however, in such event, Declarant shall not otherwise be required to pay Assessments with respect to portions of the Property owned by Declarant or an affiliate of Declarant; and further, provided, however, in no event shall Declarant be required to pay an amount which is in excess of one hundred percent (100%) of the established Assessment for the Property Interest owned by Declarant or an affiliate of Declarant. After the Turnover Date, (i) the Declarant shall no longer be responsible for contributing shortfalls outlined in the preceding sentence but rather, (ii) the Declarant and any affiliate of Declarant shall commence making regular annual and Special Assessments pursuant to Sections 5.3 and 5.4 hereof calculated on its respective Property Interest (based on the assigned number of Ownership Units). (c) The annual Assessments for the first Assessment year shall be fixed by the Association prior to the sale of the first Property Interest to an Owner. Except for the first Assessment year, the Association shall fix the amount of the annual Assessment at least thirty (30) days in advance of each Assessment year, which shall be the calendar year; provided, however, that the Association shall have the right to adjust the regular annual Assessment upon thirty (30) days written notice given to each Owner, as long as any such adjustment does not exceed the maximum adjustment permitted pursuant to this Section 5. Notwithstanding the foregoing, each time there is a new Assessable Use, the Association shall have the right to adjust and reallocate the assigned Ownership Units to account for the new Assessable Use, effective upon the date such Building Portion becomes an Assessable Use. Written notice of the regular annual Assessment shall be given as soon as is practicable to every Owner subject thereto. The Association shall, upon demand at any time, furnish a certificate in writing signed by the President, Vice President or the Treasurer of the Association setting forth whether the annual and special Assessments on any Property Interest have been paid and the amount of any delinquency. Such certificates shall be conclusive evidence of payment of any Assessment therein stated to have been paid. (d) No Owner may exempt himself from liability for Assessments by waiver of the use or enjoyment of any portion of the Development or by abandonment of its Property Interest.

Section 5.8 Effect of Non-Payment of Assessments; Remedies of the Association. (a)All payments of the Assessments shall be made to the Association at its principal place of business in Brazos County, Texas, or at such other place as the Association may otherwise direct or permit. Payment shall be made in full regardless of whether any Owner has any dispute with Declarant, the Association, any other Owner, or any other person or entity regarding any matter to which this Declaration relates or pertains. Payment of the Assessments shall be both a continuing affirmative covenant personal to the Owner and a continuing covenant running with the Property Interest. (b) Any Assessment provided for in this Declaration which is not paid when due shall be delinquent. If any such Assessment is not paid within thirty (30) days after the date of delinquency, the Assessment shall bear interest from the date of delinquency (with no notice required to be given), until paid, at the rate of ten percent (10%) per annum or the maximum rate allowed by law, whichever is the lesser. The Association may, at its option, bring an action at law against the Owner personally obligated to pay the same or, upon compliance with the notice provisions hereof, foreclose the lien against the Property Interest as provided in Subsection 5.8(d) hereof. There shall be added to the amount of such Assessment the costs of preparing and filing the complaint in such action, and in the event a judgment is obtained, such judgment shall include said interest and a reasonable attorney’s fee, together with the costs of action. Each Owner vests in the Association or its assigns, the right and power to bring all actions at law or in equity foreclosing such lien against such Owner, and the expenses incurred in connection therewith, including interest, costs and reasonable attorney’s fees shall be chargeable to the Owner in default. Under no circumstances, however, shall Declarant or the Association be liable to any Owner or to any other person or entity for failure or inability to enforce any Assessments. (c) No action shall be brought to foreclose said Assessment lien or to proceed under the power of sale herein provided less than thirty (30) days after the date a notice of claim of lien is deposited with the postal authority, certified or registered, postage prepaid, to the Owner of said Property Interest and a copy thereof is recorded by the Association in the Office of the County Clerk of the County; said notice of claim must recite a good and sufficient legal description of any such Property Interest the record Owner or reputed Owner thereof, the amount claimed (which may, at the Association’s option, include interest on the unpaid Assessment at the maximum legal rate, plus reasonable attorney’s fees and expenses of collection in connection with the debt secured by said lien), and the name and address of the Association. (d) Any such sale provided for above is to be conducted in accordance with the provisions applicable to the exercise of powers of sale in mortgages and deeds of trust, as set forth in Section 51.002 of the Property Code of the State of Texas (as it may be amended from time to time), or in any other manner permitted by law. Each Owner, by accepting a deed to its Property Interest, expressly grants to the Association a power of sale as set forth in said Section 51.002 of the Property Code, in connection with the Assessment lien. The Association, through duly authorized agents, shall have the power to bid on the Property Interest at foreclosure sale and to acquire and hold, lease, mortgage and/or convey the same. (e) Upon the timely curing of any default for which a notice of claim of lien was filed by the Association, the officers of the Association are hereby authorized to file or record, as the case may be, an appropriate release of such notice, upon payment by the defaulting Owner of a fee, to be determined by the Association but not to exceed the actual cost of preparing and filing or recording the lien and the release. The Assessment lien and the right to conduct a foreclosure sale hereunder shall be in addition to, and not in substitution of, all other rights and remedies which the Association and its successors or assigns may have hereunder and by law, including the right of suit to recover a money judgment for unpaid Assessments, as above provided.

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