Document

138 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR EMPORIUM ON LBJ A COUNTY CLERK'S MEMO PORTIONS OF THIS DOCUMENT NOT REPRODUCIBLE WHEN RECORDED 3562 2 114.00 DEED 2 12/19/91 THIS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS for EMPORIUM ON LBJ (the "Declaration") is made and entered into as of this 30th day of July, 1991, by Emporium on LBJ Owners Association, Inc \(the "Association").

"REAL" 1382 WITNESS ETH: WHEREAS, that certain Amended and Restated Declaration of Covenants, Conditions and Restrictions for Emporium on DBJ (the "Superseded Declaration"), dated June 23 -1986) was filed of record on June 26, 1986, and recorded in Volume 86123, Page 1787, of the Deed Records of Dallas County, Texas; and WHEREAS, the Association is hereby amending the Superseded Declaration by means of the recordation of this Declaration; and WHEREAS, the Superseded Declaration and this Declaration covered all of the Property (as herein defined) described in Exhibit "A" attached heret and made a part hereof for all purposes; and fficia WHEREAS, this amendment has been approved by a majority of the vote of those Members (as hereinafter defined) voting in person or by proxy at duly called meeting on the 30th day of July, 1991; and the WHEREAS, the Association desires to subject the fee simple interest in the Property to this Declaration and to covenants, conditions, restrictions, easements, liens and charges herein set forth; and WHEREAS, the Emporium on LBJ Owners Association, Inc., a non-profit corporation, has been incorporated under the laws of the State of Texas for the purpose of exercising the powers and functions hereinafter set forth; and

on LBJ Owners Association, Inc., a non-profit corporation, has been incorporated under the laws of the State of Texas for the purpose of exercising the powers and functions hereinafter set forth; and WHEREAS, Members will hereafter hold and convey title to the Property or any part thereof subject to the covenants, conditions, restrictions, easements, liens and charges herein set forth.

138,99 -192028 3040 91246 1934 THEREFORE, NOW, and declares that agrees the Association hereby covenants, the Property shall be owned, held, transferred, leased, sold, conveyed and occupied subject to the covenants, conditions, restrictions, easements, liens and charges herein set forth.

ARTICLE I 1.01 Definitions.

DEFINITIONS As used in this Declaration, following terms shall have the meanings ascribed to them: the Prop.

(a) "Act" shall mean the Texas Condominium Act, Tex Code Ann. Section 81.001, et seq. (Vernon 1984), as amended from time to time.

(b) "Architectural Review Committee shall mean and refer to that committee composed of three (3) members appointed by the Declarant and/or the Board of Directors as provided herein.

(c) "Articles of Incorporation" shall mean and refer to the Articles of Incorporation of the Association as the same may from time to time be duly amended.

Her (d) "Assessments" shall mean described in Section 4.01 of Articl LBJ Owners Association and refer to the assessments I of this Declaration.

(e) "Association" shall mean and refer to the Emporium on a non-profit corporation incorporated under the laws of the State of Texas, its successors and assigns to which association shall be delegated and assigned the powers of managing, maintaining and administering the common Area and disbursing funds, collecting

e State of Texas, its successors and assigns to which association shall be delegated and assigned the powers of managing, maintaining and administering the common Area and disbursing funds, collecting assessments and charges and performing such other acts as shall generally benefit the property now or hereafter covered by this Declaration.

"Board of Directors" and "Board" shall mean and refer to the duly elected Board of Directors of the Association.

(f) shall mean and refer to "Buffer Easements" collectively both (i) the Park and Pedestrian Walkway Easement (as herein defined) and (ii) the Separate Buffer Easement (as herein defined).

(h) "Certificate of Occupancy" shall mean and refer to any required certification issued by relevant governmental authorities as a prerequisite to the occupancy of all or any portion of any Estate.

-292028 3041 91246 1935 Texas.

(i) "City" shall mean and refer to the City of Mesquite, (j) "Commercial Use" shall mean any governmental, professional, office, hotel, motel, restaurant, business, business park, warehouse, eleemosynary, trade, industrial, retail, financial, medical or other similar use.

the (k) "Common Area" shall mean and refer to all property and improvements thereon, including, without limitation, any private storm drains, private streets, private utilities, private parks, open space, landscaped areas and trails owned in fee, owned as an easement or leased or maintained from time to time, by the Association for the common use, enjoyment and benefit of the Members. The term "Common Area" shall also mean and refer to that portion of the Landscape Buffer Area subject to and encumbered by the Park and Pedestrian an Walkway Walkway Baseme Easement, which portion of the Landscape Buffer Area-shall be conveyed in

er to that portion of the Landscape Buffer Area subject to and encumbered by the Park and Pedestrian an Walkway Walkway Baseme Easement, which portion of the Landscape Buffer Area-shall be conveyed in fee to the Association and shall be subject to the rights of the and Declarant the City to develop, maintain and use the landscape Buffer Area as a park and as a pedestrian walkway.

The term "Common Area" shall also mean and refer to that portion of the Landscape Buffer Area subject to and encumbered by the Separate Buffer Easement, which portion of the Landscape Buffer Area has been conveyed as an easement to the Association and shall be subject to the rights of Declarant and the City to develop, maintain and use as a park and as a pedestrian walkway.

Any real property of interest in real property which Declarant shall convey to the Association to be designated Common Area shall be accepted in writing by the Association and shall be conveyed (free of all liens and encumbrances, except current ad valorem taxes (which taxes shall be prorated as of the date of conveyance) and the covenants, conditions, restrictions, easements, iens and charges of this Declaration.

(1) "Condominium Building" shall a and refer to mean commercial real estate condominium project composed of one or more structures erected on a lot, tract or parcel of real estate out of of a part of the Property containing two (2) or more Condominium Units, which project has been specifically created and designated as a condominium in accordance with the Act.

(m) "Condominium Unit" shall mean and refer to one (1) or which for individual commercial office unit, unit a Certificate of Occupancy has been issued by the appropriate governmental authorities and which unit is located within

l mean and refer to one (1) or which for individual commercial office unit, unit a Certificate of Occupancy has been issued by the appropriate governmental authorities and which unit is located within Condominium Building, together with an undivided interest in and to the common elements associated with such unit.

a The term term "Condominium Unit" shall have the same meaning as the -392028 3042 91246 1936 "apartment" as used in the Act, as same may be amended or supplemented in any successor statute. The term "Condominium Unit" does not refer to a condominium unit used as a residence.

(n) "Declarant" shall mean and refer to Sunbelt Federal Savings, FSB, with respect to the voluntary disposition of all or substantially all of the assets of Sunbelt Federal Savings, FSB, or the voluntary disposition of all or substantially all of the right, title and interest of Sunbelt Federal Savings, FSB, in and to the Property, where such voluntary disposition of right, title and interest expressly provides for the transfer and assignment of the rights of Sunbelt Federal Savings, FSB, as Declarant. No person or entity purchasing the Property or any part thereof from Sunbelt Federal Savings, FSB, in the ordinary course of business shall be considered as Declarant. The Declarant may, at its option, delegate and/or assign its duties, obligations and rights hereunder to persons or entities of its choosing, such delegation and/or assignment to be only be express written agreement.

(0) "Declaration" shall mean and refer to this instrument and, collectively, to the covenants conditions, restrictions, reservations, easements, liens and charges imposed by or expressed in this instrument.

(p) "Design Guidelines" shall mean and refer to standards,

llectively, to the covenants conditions, restrictions, reservations, easements, liens and charges imposed by or expressed in this instrument.

(p) "Design Guidelines" shall mean and refer to standards, restrictions or specifications set forth herein and/or published from time to time by the Architectural Review Committee which govern the construction, placement, location, modification, alteration, maintenance or design of any improvements to the Property. Design Guidelines shall be consistent with the standards otherwise generally prevailing in the Property.

(q) "Estate"shall mean and collectively refer to a Condominium Unit, Tract or other interest in real property contained within the Property, the ownership of which, by the terms of this Declaration, causes the owner thereof to be a Member of the Association.

(r) "Improvements" shall mean and include all buildings and roofed structures, parking areas, loading areas, railroad trackage, fences, walls, poles, driveways, ponds, lakes, swimming pools, tennis courts, signs, changes in any exterior color or shape, glazing or reglazing of exterior windows with mirrored reflective glass, drainage, utilities, roads, alleys, paths, and all original improvements, any new br 92028 3043 91246 -41937 construction or exterior improvement significantly altering the appearance of any existing improvements, but does not include public streets, utilities, garden shrubs or tree replacements or any other replacement or repair of any magnitude which ordinarily would be expensed in accounting practice and which does not change exterior colors or exterior appearances.

and all later changes the Property, to a all for (s) "Landscape Buffer Area" shall mean and refer to the real property described on Exhibit "B" attached hereto and made

colors or exterior appearances.

and all later changes the Property, to a all for (s) "Landscape Buffer Area" shall mean and refer to the real property described on Exhibit "B" attached hereto and made part hereof purposes, including any and all improvements thereon, such Landscape Buffer Area being created by and more fully described in the Buffer Easements. In the event that Dallas Power and Light Company and/or the city grants to Declarant and/or the Association an easement to develop and maintain the real property described on Exhibit bottached hereto and made a part hereof for all purposes ("DP&L ROW") as a park and pedestrian walkway, the term "Landscape Buffer Area" as used herein shall also mean and refer to and include the DP&L ROW as and the term "Buffer Easements" used herein shall thereafter also mean and refer to and include the easement creating the DP&L ROW.

(t) or "Member" or "Owner" shall mean and refer to each and entity who, individually together with every person or another person or entity, is a record title owner of a fee or undivided fee interest in any Tract, Condominium Unit, or any lot, tract or parcel of real estate out of or a part of the Property; provided, however the term "Member" or "owner" shall not include any person or entity holding a bona fide lien or security interest in a Tract, Condominium Unit or any lot, tract or parcel of real estate out of or a part of the Property as security for the performance of an obligation.

(u) "Ordinance shall mean and refer to that certain Ordinance No. 2048 File No. 1095-21, of the City, dated July 16, 1984 (v) "Park and Pedestrian Walkway Easement" shall mean that certain easement dated October 30, 1985, executed by Declarant and recorded in Volume 85222, Page 2347, of the Deed Records of

July 16, 1984 (v) "Park and Pedestrian Walkway Easement" shall mean that certain easement dated October 30, 1985, executed by Declarant and recorded in Volume 85222, Page 2347, of the Deed Records of Dallas County, Texas, pursuant to which the City was granted a fifty foot (50') easement for a park and a pedestrian walkway and the Association was granted a sixty foot (60') maintenance easement.

a (w) "Property" shall mean and refer to all of the real property described in Exhibit "A" attached hereto and made part hereof for all purposes, including any and all improvements thereon, and any additions of real property, as are subject to this Declaration, or any supplement or amendment hereto prepared and filed of record pursuant to the provisions hereof.

-592028 3044 91246 1938 (x) "Restaurant Area Right-of-Way" shall mean and refer to the real property described on Exhibit "D" attached hereto and made a part hereof for all purposes, including any and all improvements thereon, such Restaurant Area Right-of-Way being created by and more fully described in that certain Declaration of Roadway Easement, Use and Maintenance Agreement ("Restaurant Area Declaration") dated October 30, 1985, executed by Declarant and recorded in Volume 85222, Page 2355, of the Deed Records of Dallas County, Texas.

(y) "Separate Buffer Area" shall mean and refer to the real property described on Exhibit "E" attached hereto and made a part hereof for all purposes, including any and all improvements thereon, such Separate Buffer Area being created by and more fully described in the Separate Buffer Easement.

(z) "Separate Buffer Easement" shall mean that certain easement created pursuant to the Grant of Landscaping and Screening Wall Easement, Use and Maintenance Agreement, shall

Separate Buffer Easement.

(z) "Separate Buffer Easement" shall mean that certain easement created pursuant to the Grant of Landscaping and Screening Wall Easement, Use and Maintenance Agreement, shall mean that certain agreement dated December 18, 1985, executed by Declarant and Vantage, and recorded in Volume/84248, Page 3732, of the Deed Records of Dallas County, Texas, pursuant to which a park and a pedestrian walkway easement were created.

(aa) "Tract" shall mean or unsubdivided, improved or unimproved tract, lot or parcel of land within the Property, developed or to be developed for commercial use. The term "Tract" shall not include land upon which is located a Condominium Building.

II PROPERTY SUBJECT TO DECLARATION Unonicial 2.01 Property Subject to Declaration. The Property and any right, title therein shall be owned, held, transferred, leased, sold, conveyed and/or occupied by Declarant and any subsequent owner, lessee or occupant of all or any part thereof, this Declaration and the covenants, conditions, restrictions, easements, liens and charges herein set a ARTICLE III MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION 3.01 Membership. Each and every Owner shall automatically be Member of the Association without the necessity of any further action on his part subject to the terms of this Declaration, the Articles of Incorporation and the Bylaws of the -692028 3045 91246 1939 Association and the rules of the Association. Membership of an Owner in the Association shall be appurtenant to and may not be separated from the interest of such Owner in and to any portion of the Property. Ownership of any portion of the Property shall be the sole qualification for being a Member; provided, however a Member's voting rights, as herein described, may be regulated

portion of the Property. Ownership of any portion of the Property shall be the sole qualification for being a Member; provided, however a Member's voting rights, as herein described, may be regulated or suspended as provided in this Declaration, the Bylaws of the Association and/or the rules of the Association. No person or entity shall be a Member by reason of ownership of any park, public land, road, easement, right-of-way or mineral interest.

In addition, any person or entity that holds an interest in and to all or any part of the Property merely as security for the performance of an obligation shall not be a Member.

new Owner 3.02 Transfer. Membership of an Owner in the Association may not be severed from or in any way transferred, transferred, pledged, mortgaged or alienated except upon the sale sale or or ass assignment of said Owner's interest in all or any part of the property and then only to the purchaser or assignée as the thereof. Membership in the Association shall not be severed by the encumbrance by an Owner of all or any part of the Property.

Any attempt to make a prohibited severance, transfer, pledge, mortgage or alienation of such membership shall be void and of no further force or effect, and will not be reflected upon the books and records of the Association. Any transfer of the fee title to a lot, tract or parcel of real estate out of or a part of the Property shall automatically operate to transfer the membership to the new Owner thereof.

or refuse to of Owner in the Association In the event an Owner should fail transfer the membership in the Association registered in such Owner's name to the transferee of such Owner's interest in all the Association shall have the any part of the Property

n Owner should fail transfer the membership in the Association registered in such Owner's name to the transferee of such Owner's interest in all the Association shall have the any part of the Property right to record the transfer upon the books and records of the Association.

or 3.03 Membership and Voting Rights. The Association shall have two (2) classes of voting membership: (a) CLASS A MEMBERSHIP.

Class A Members shall be all of the owners with the exception of the Declarant pursuant to the terms of Subsection (b) below. Subject to the provisions of Section 3.05, Class A Members shall be entitled to: One (1) vote for every 1,000 gross square feet of land contained within any Tract, parcel or portion of the Property owned by such Class A Member plus five (5) votes per each 1,000 square feet contained within a Condominium Unit, as defined in Section 1.01(m), or other building dedicated to Commercial Use, provided, however, -792028 3046 91246 1940 that the square footage contained within such buildings or Tracts which is used as public common areas, parking areas, parking structures or other areas, and which are not leaseable or are not included within a Condominium Unit, shall not be included for purposes of calculating the number of votes to which each Class A Member shall be entitled to.

Further, the square footage contained within any limited or general common areas constituting a portion of a Condominium Building, as defined in Section 1.01(1), and apportionable to a Condominium Unit, shall also not be included in such calculations.

Where an association or other organization has been established with respect to a Condominium Building, the board of directors or other governing body so empowered under the organizational

lculations.

Where an association or other organization has been established with respect to a Condominium Building, the board of directors or other governing body so empowered under the organizational documents of such association or organization shall cast all of the votes exercisable hereunder with respect to such Condominium Building on each and every matter in question on which a vote is authorized or permitted under this Declaration/or the Articles of Incorporation or Bylaws of the Association. Such association or organization may cast the votes exercisable hereunder in one block behalf of such Condominium Building or condominium regime or as instructed by each individual Owner of a Condominium Unit, as determined accordance with the organizational documents creating such association or organization.

on in (b) CLASS B MEMBERSHІР. The Class B Member shall be the Declarant. The Class B Member shall be entitled to ten (10) votes for every 1,000 gross square feet of land contained within any Tract, parcel on portion of the Property owned by the Class B Member. The Class B Membership shall cease and be converted to Class A Membership on the occurrence of any of the following events, whichever occurs first: (1) When the total number of votes outstanding in the Class A Membership is ten (10) times greater than the total number of vetes outstanding in the Class B Membership; or (ii) On the sixteenth (16th) anniversary date of the recording of this Declaration in the office of the County Clerk of Dallas County, Texas; or (iii) When the Declarant, at Declarant's sole option and discretion, notifies the President of the Association in writing that Declarant's Class B Membership is converted to Class A Membership.

92028 3047 -891246 1941

arant, at Declarant's sole option and discretion, notifies the President of the Association in writing that Declarant's Class B Membership is converted to Class A Membership.

92028 3047 -891246 1941 Notwithstanding the foregoing, with respect to Estates owned by the Declarant and developed or being developed with a Condominium Building or being developed with a commercial building, the Declarant shall be deemed to be a Class A Member for purposes of calculating votes attributable to the Estates being developed as aforesaid.

3.04 Suspension of Voting Rights. The voting rights of any Member set forth in this Declaration may be suspended by the Board of Directors of the Association for any period during which any Assessment remains past due, unless the Member is in good faith contesting the validity or amount of the Assessment.

3.05 Multiple Owner Votes.

Votes hereunder may not be cast on a fractional basis between multiple Owners of an Estate.

Further, where there are multiple Owners of an Estate it is not intended by Section 3.03 that each of said Owners shall be entitled to cast the votes allocated to such Estate. As an example, where three (3) persons own a Condominium Unit they shall jointly be entitled to vote the five (5) votes per 1,000 square feet contained within such Condominium Unit and each Owner shall not be entitled to individually vete five (5) votes per 1,000 square feet so allocated. When more than one person or entity owns the interest or interests in and to any Estate as required for Membership in the Association, each and every person or entity shall be a Member, and the vote for any Estate shall be exercised as the Owners of such Estate, among themselves, collectively determine. If such Owners are unable

ion, each and every person or entity shall be a Member, and the vote for any Estate shall be exercised as the Owners of such Estate, among themselves, collectively determine. If such Owners are unable to agree among themselves as to how their vote or votes shall be cast, they shall forfeit the vote or votes on the matter in question. If more than one (1) person or entity purports to exercise the voting rights with respect to any Estate on any matter in question, none of such votes shall be counted in tabulating the vote on such matter and such votes shall be deemed void. The Association shall not be required to recognize the vote or written assent of any such multiple Owners except the vote or written assent of the Owner designated in writing to act for such multiple Owners executed by all of the multiple Owners and delivered to the Association.

06 Quorum, Notice and Voting Requirements.

(a) Subject to the provisions of Paragraph (c) of this Section, any action authorized by Sections 4.04 or 4.06 of Article IV of this Declaration shall require the assent of the majority, regardless of class, of the Members entitled to vote, which Members shall vote either in person or by proxy at a meeting duly called for such purpose. Written notice of any such meeting shall be given to all Members not less than three (3) days nor more than fifty (50) days in advance and shall set forth the purpose of such meeting.

-992028 3048 91246 1942 (b) The quorum required for any action referred to in Paragraph (a) of this Section shall be as follows: At the first meeting called, the presence at the meeting of Members, or of proxies, entitled to cast fifty percent (50%) of all of the votes of the Association shall constitute a quorum. If the required quorum is not present at the first

ence at the meeting of Members, or of proxies, entitled to cast fifty percent (50%) of all of the votes of the Association shall constitute a quorum. If the required quorum is not present at the first meeting, one additional meeting may be called subject to the notice requirement hereinabove set forth, and the required quorum at such second meeting shall be one-half (1/2) of the required quorum at the preceding meeting; provided, however, that no such second meeting shall be held more than sixty (60) days following the first meeting.

(c) As an alternative to the procedure set forth above, any action referred to in Paragraph (a) of this section may be taken without a meeting if a written consent, approving of the action to be taken, shall be signed by all the Members entitled to vote.

(d) Except as specifically set forth in this Declaration, notice, voting and quorum requirements quirements for all action to be taken by the Association shall be consistent with the Articles of Incorporation and Bylaws of the Association, as same may be amended from time to time.

ARTICLE IV ASSESSMENTS 4.01 Covenants for Assessments. The Declarant, for each Tract, Condominium Unit or any lot, tract or parcel of real estate out of or a part of the Property owned by Declarant, hereby covenants and agrees to pay, and each Owner of each Tract, Condominium Unit or any lot, tract or parcel of real e state out of or a part of the Property, by acceptance of a deed or other conveyance document creating in such Owner the interest required to be be deemed an Owner, whether or not it shall be so expressed in any such deed or other conveyance document, shall be deemed to covenant and agree (and such covenant and agreement shall be deemed to constitute a portion of the consideration and

l be so expressed in any such deed or other conveyance document, shall be deemed to covenant and agree (and such covenant and agreement shall be deemed to constitute a portion of the consideration and purchase money for the acquisition of such Tract, Condominium Unit or any lot, tract or parcel of real estate out of or a part of the Property) to pay to the Association (or to any entity or collection agency designated by the Association) the following Assessments: (1) Annual Assessments (as defined in Section 4.03 of this Article IV), such Annual Assessments to be fixed, -1092028 3049 91246 1943 established and collected from time to time as herein provided; (2) Special Assessments for capital improvements and other purposes (as defined in Section 4.04 of this Article IV), such Special Assessments to be fixed, established and collected from time to time as herein provided; and (3) Individual Special Assessments levied against individual Owners to reimburse the Association for extra costs for maintenance and repairs caused by the willful or negligent acts or omissions of an individual Owner and not caused by ordinary wear and tear (as specified in Section 4.05 of this Article IV), such Individual Special Assessments to be fixed, established and collected from time to time as herein provided. The Assessments, together with interest thereon, attorneys' fees, court costs and other costs of collection thereof, as herein provided, shall be a charge on the land and shall be a continuing lien upon each Estate against which each such Assessment is made. Each Assessment, together with interest thereon, attorneys' fees, court costs and other cost of collection thereof, as herein provided, shall the personal obligation of the owner of such Estate against

ach Assessment, together with interest thereon, attorneys' fees, court costs and other cost of collection thereof, as herein provided, shall the personal obligation of the owner of such Estate against which such Assessment is made at the time when the Assessment fell due. No Owner may exempt himself from liability for such Assessment or waive or otherwise escape liability for the Assessments for non-use of the Common Area or abandonment of his Estate. The personal obligation to pay any such Assessment, together with interest thereon, attorneys'fees, court costs and other costs of collection thereof, as herein provided, shall pass to the successors-in-title of each owner whether or not expressly assumed in writing by such successors; provided that such personal obligation to pay the Assessments and other costs shall not pass to mortgagees of any owner who succeed to the title of such Owner.

shall also be 4.02 Purpose of Assessments. The Assessments levied by the Association shall be used, in part, for the purpose of: (1) promoting the recreation, comfort, health, safety and welfare of the Members and/or the Owners of the Property, (2) managing and maintaining the Common Area, (3) managing and maintaining the Landscape Buffer Area, in particular, the masonry landscaping/wall and other improvements located within the Landscape Buffer Area, (4) enhancing the quality of life in the Property and the value of the Property, and in particular for the improvement and maintenance of the properties, services and facilities devoted to the purpose of and related to the use and enjoyment of the Property including, but not limited to, the payment of taxes on the Common Area and insurance in connection with the Common Area and the repair, replacement and addition

o the use and enjoyment of the Property including, but not limited to, the payment of taxes on the Common Area and insurance in connection with the Common Area and the repair, replacement and addition thereto, the payment of the cost of labor and equipment (including the expense of leasing any equipment); the carrying out of the powers and duties of the Board of Directors of the Association as set forth in Article V of this Declaration; and the carrying out of the purposes of the Association as stated in its Articles of Incorporation.

92028 3050 91246 -111944 4.03 Annual Assessments.

(a) In order to provide funds for the purposes and uses specified in Section 4.02 hereof, the Association, acting through the Board of Directors, in each year, commencing with the year specified in Section 4.06 hereof, shall levy annual assessments (the "Annual Assessments") against the Owners for such charges as the Board of Directors, in its sole and absolute discretion, determines are necessary and appropriate. The Annual Assessments shall be based upon an annual budget prepared by the Board of Directors, which budget shall be available for inspection by any Owner at the office of the Association during normal business hours.

(b) The total amount of Annual Assessments shall be allocated among all Estates as provided in this Section 4.03(b). Each Estate for which no building permit has been issued by the applicable governmental authority shall be allocated one (1) point for each gross square foot of Improvements allowed on each such Estate. If a building permit has been issued for an Estate, such Estate shall be allocated three (3) points for each gross square foot of Improvements actually constructed thereon pursuant to each such building

a building permit has been issued for an Estate, such Estate shall be allocated three (3) points for each gross square foot of Improvements actually constructed thereon pursuant to each such building permit and one (1) point for each remaining gross square foot of Improvements allowed on the Estate, but not actually constructed thereon, which amount shall represent the difference between (i) the total amount of gross square feet of Improvements allowed on the Estate less (ii) the total gross square feet of Improvements actually constructed thereon pursuant to any such building permit(s) issued for such Estate. The percentage of the total Annual Assessments to be levied against an Estate shall be determined by dividing the total points allocated to that Estate by the total number of points allocated to all Estates. Each Owner shall provide the Association with a copy of the initial and all subsequent building permit(s) issued for each Estate owned by such Owner immediately upon receipt of such building permit(s).

For purposes hereof, the gross square feet of Improvements allowed on an Estate owned by an Owner other than the Declarant shall be be the the gro gross square feet of Improvements allowed on such Estate pursuant to the deed conveying such Estate from the Declarant to the original owner of such Estate, or other instrument executed by Declarant and the original or any subsequent, Owner thereof, relating to such Estate, and which is duly recorded in the Deed Records of Dallas County, Texas. The gross square feet of Improvements allowed on an Estate owned by the Declarant shall be determined pursuant to the terms and provisions of the Ordinance, that certain Declaration of Covenants, Conditions and Restrictions with Respect to Certain -1292028 3051 91246 1945

clarant shall be determined pursuant to the terms and provisions of the Ordinance, that certain Declaration of Covenants, Conditions and Restrictions with Respect to Certain -1292028 3051 91246 1945 Uses, dated December 18, 1984, recorded in Volume 84248, Page 3685, Deed Records, Dallas County, Texas, as amended by that certain Amendment to Declaration of Covenants, Conditions and Restrictions with Respect to Certain Uses, dated as of February 5, 1986, entered into by and between Vantage and Declarant, recorded in Volume 86040, Page 5703, Deed Records, Dallas County, Texas, and that certain Agreement Regarding Declaration of Covenants, Conditions and Restrictions with Respect to Certain Uses, dated as of February 5, 1986, entered into by and between Vantage and Declarant, recorded in volume 86040, Page 5091, Deed Records, Dallas County, Texas.

of The computation of points to be allocated to each Estate shall be made annually at the time that the Board of Directors of the Association computes the total amount of Annual Assessments for all Estates as provided below in in this Section.

The points to be allocated to an Estate for purposes determining the percentage of the total Annual Assessments to be levied against such Estate shall be adjusted at such time based upon the above formula where the initial or any subsequent building permit (or permits) has been issued for such Estate prior to November 1 of the year immediately prior to the year for which the new budget for Annual Assessments is being prepared. Only those building permits issued prior to the November 1 cutoff date shall be reflected in the points allocation for the succeeding year.

(c) The amount and time of the payment of the Annual Assessments shall be determined by the Board of Directors of the

1 cutoff date shall be reflected in the points allocation for the succeeding year.

(c) The amount and time of the payment of the Annual Assessments shall be determined by the Board of Directors of the Association pursuant hereto and otherwise in accordance with the Articles of Incorporation and Bylaws of the Association. The Board may provide that Annual Assessments shall be paid monthly, quarterly, semi-annually or annually on a calendar year basis.

Not later than thirty (30) days prior to the beginning of each calendar year, the Board of Directors of the Association shall estimate the total common expenses to be incurred by the Association for the forthcoming calendar year and the total amount of Annual Assessments necessary to defray such expenses.

The Board shall then determine, in a manner consistent with the terms and provisions of this Declaration, the amount of the Annual Assessments to be paid by each Member. Written notice of the Annual Assessments to be paid by each Member (and the method of computing the amount of the total Annual Assessments to be levied against each Estate) shall be sent to each Member, but only to one (1) joint Owner. Each Member shall thereafter pay to the Association each Member's Annual Assessments in installments or otherwise as may be established pursuant to the terms hereof, by the Board of Directors of the Association. The Board may not, without the consent of the Declarant (so long as the Class "B" Membership has not terminated) and the vote or -1392028 3052 91246 1946 written consent of at least a majority of the Class "A" Members, increase the Annual Assessments by a sum exceeding the amount equal to the total Annual Assessments for the immediately preceding calendar year, multiplied by the greater of (i) ten

Class "A" Members, increase the Annual Assessments by a sum exceeding the amount equal to the total Annual Assessments for the immediately preceding calendar year, multiplied by the greater of (i) ten percent (10%) or (ii) the percentage that (A) the amount of the CPI for the then most current annual period less the amount of the CPI for the annual period immediately preceding the then most current annual period, (B) bears to the CPI for such annual period immediately preceding the then most current annual period. As used herein, "CPI" shall mean the Consumer Price Index for All Urban Consumers in the Dallas-Fort Worth Area issued by the United States Department of Labor, Bureau of Labor Statistics (or if such agency ceases or fails to report such amount, then any similar index of generally accepted credibility selected by the Association). The maximum amount of the increase in the Annual Assessment as determined pursuant to (1) or (ii) above may be cumulative from year to year. At any time and from time to time during the term hereof, Declarant shall have the right, but not the obligation, to contribute to the Association an amount in excess of Declarant's share of the total Annual Assessments. Notwithstanding anything herein to the contrary, for purposes of calculating the increases in the total Annual Assessments as specified above, the total Annual Assessments shall be deemed to be the total common expenses budgeted by the Board of Directors for such calendar year without reduction for any such contributions to the Association made by Declarant.

as (d) If the budget for the succeeding year is not duly adopted as provided herein, then and until such time as a budget shall have been duly adopted, the budget in effect for the then

by Declarant.

as (d) If the budget for the succeeding year is not duly adopted as provided herein, then and until such time as a budget shall have been duly adopted, the budget in effect for the then current year and the amount of Annual Assessments levied against each Estate for such current year shall continue for the succeeding year.

4.04 Special Assessments. In addition to the Annual Assessments authorized by Section 4.03 of this Article IV, the Association máy levy in any calendar year a special assessment ("Special Assessment") for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, unexpected repair or replacement of a capital improvement upon the Common Area (including the Landscape Buffer Area), including the necessary fixtures and personal property related thereto, or for maintenance of portions of the Common Area (including the Landscape Buffer Area) and improvements therein or for carrying out other purposes of the Association as stated in the Articles of Incorporation of the Association; provided, however, that any such Special Assessment levied by the Association shall have the affirmative approval of the Members of the Association, as provided herein. The Special Assessment shall be allocated among all Estates as provided in Section 4.03(b).

-1492028 3053 91246 1947 4.05 Special Individual Assessments. Upon the affirmative majority vote of the Board of Directors of the Association as provided herein, the Association may levy special assessments against individual Owners ("Special Individual Assessment") for: (i) reimbursement to the Association for repairs to the Common Area or improvements thereto, occasioned by the willful or an negligent acts of such Owner(s) and not the result of

ual Assessment") for: (i) reimbursement to the Association for repairs to the Common Area or improvements thereto, occasioned by the willful or an negligent acts of such Owner(s) and not the result of ordinary wear and tear; or (ii) for payment of fines, penalties, fees or other charges imposed against individual Owner relative to such Owner's failure to comply with the provisions of this Declaration, the Bylaws of the Association or any rules regulations promulgated hereunder, including, without limitation, fees imposed pursuant to Article X, Seqtion 10.14 hereof.

or Dates.

on 4.06 Date of Commencement of Annual Assessments and Due Annual Assessments commenced as to the Property January 1, 1986, and were due and payable in full by January 30, 1986. The Annual Assessments for any year after 1986 shall become due and payable on January 1 of such year, unless otherwise required or permitted by the Association, pursuant to the terms hereof, and the Annual Assessments or any installment thereof (if payable in installments) shall be considered delinquent if not paid within thirty (30) days after the Annual Assessments or any installment thereof is stated to be due and payable. The due date and date of delinquency of any Special Assessment or Special Individual Assessment shall be fixed by the Board.

4.07 No Offsets. All Assessments shall be payable in the amount specified by the Association and no offsets against such amount by any Owner shall be permitted for any reason.

4.08 Reserves all amounts collected as (a) The Annual Assessments shall include reasonable amounts, as determined by the Board, collected as reserves for the future periodic maintenance, repair and/or replacement of all or a portion of the Common Area. Except as set forth in paragraph (b) immediately below,

mined by the Board, collected as reserves for the future periodic maintenance, repair and/or replacement of all or a portion of the Common Area. Except as set forth in paragraph (b) immediately below, reserves, whether pursuant to this Section or otherwise, shall be deposited by the Association in a separate bank account to be held in trust for the purposes for which they were collected and are to be segregated from and not commingled with any other funds of the Association. Assessments collected as reserves shall not be considered to be advance payments of regular Assessments. Annual Assessments shall also include amounts collected for the maintenance and repair of the Landscape Buffer Area.

-1592028 3054 91246 1948 (b) The Association may, if required by the City, establish an escrow fund with the City as a reserve for future maintenance and repair of the Landscape Buffer Area, such reserve to cover day-to-day maintenance costs as well as future capital repair and replacement.

4.09 Nonpayment of Assessments.

(a) Delinquency. Any Assessment provided for in this Declaration which is not paid in full when due shall be delinquent on the date after the date due ("delinquency date" as specified in the notice of such Assessment). The Association shall have the right to reject partial payment of an Assessment and demand full payment thereof. If any Assessment or part thereof is not paid within ten (10) days after the delinquency date, the unpaid amount of such Assessment shall bear interest after the delinquency date until paid at arate equal to the lesser of eighteen percent (18%) per annum er the maximum lawful rate.

(b) Lien. The unpaid amount of any Assessment not paid by the delinquency date shall, together with the interest thereon

l to the lesser of eighteen percent (18%) per annum er the maximum lawful rate.

(b) Lien. The unpaid amount of any Assessment not paid by the delinquency date shall, together with the interest thereon as provided in Section 4.09(a) of this Article IV and the cost of collection thereof, including reasonable attorneys' fees, as herein provided, thereupon become a continuing lien and charge on the Estate of the non-paying owner covered by such Assessment which shall bind such Estate in the hands of the Owner, and its heirs, executors, administrators, devisees, personal representatives, successors and assigns. The aforesaid lien shall be superior to all other Miens and charges against the Estate, except only for tax liens and the lien of any bona fide mortgage or deed of trust now or hereafter placed upon said real property subject to an Assessment and which mortgage or deed of trust is recorded prior to recordation of written notice of past due Assessments; provided, however, that such subordination shall apply only to the Assessments which have become due and payable prior to a sale, whether public or private, of such property pursuant to the terms and conditions of any mortgage or deed of trust. However, such a sale shall not relieve the owner of such real property from liability for any Assessment thereafter becoming due nor from the lien of any such subsequent Assessment. The Association shall have the power to subordinate the lien securing the payment of any Assessment rendered by the Association to any other lien.

such As hereinbefore stated, the personal obligation of the owner, at the time of to shall such Assessment, remain the such Assessment pay personal obligation of such Owner and shall pass to such Owner's

h As hereinbefore stated, the personal obligation of the owner, at the time of to shall such Assessment, remain the such Assessment pay personal obligation of such Owner and shall pass to such Owner's successors-in-title whether or not expressly assumed by them in The lien for writing, as set forth in Section 4.01 hereinabove.

or the unpaid Assessments shall be unaffected by any sale assignment of an Estate and shall continue in full force and effect.

-1632028 3055 91246 1949 To evidence the aforesaid lien the Association shall prepare a written notice of lien setting forth the amount of the unpaid indebtedness, the name of the Owner of the real property covered by such lien and a description of the Estated covered by such lien. Such notice shall be executed by an officer of the Association and shall be recorded in the office of the County Clerk of Dallas County, Texas.

the (c) Remedies. The lien securing the payment Assessments shall attach to the Estate belonging to such non-paying Owner with the priority set forth in this Section.

Each Owner, by his acceptance of a deed to an Estate, hereby expressly vests in the Association, or its agents, the right and power, but not the obligation, to bring all actions against such Owner personally for the collection of such charges as a debt and to enforce the aforesaid lien by all methods available for the enforcement of such liens, including but not limited to, non-judicial foreclosure pursuant to Chapter 51, Section 51.002 of the Texas Property Code, and such Owner hereby expressly grants to the Association a power of sale in connection with such lien. Each Owner hereby authorizes and empowers the Association to sell all or any portion of the Estate belonging to such non-paying Owner together, or in lots or parcels, as the

connection with such lien. Each Owner hereby authorizes and empowers the Association to sell all or any portion of the Estate belonging to such non-paying Owner together, or in lots or parcels, as the Association may deem expedient, and to execute and deliver to the purchaser or purchasers of such Estate good and sufficient deeds of conveyance of fee simple title with covenants of general warranty made on behalf of such non-paying Owner. It is expressly agreed that the recitals in the conveyance to the purchaser or purchasers of such Estate shall be full evidence of the truth of the matters thereinstated, and all prerequisites to said sale shall be presumed to have been performed. In any foreclosure proceeding the Owner shall be required to pay the costs, expenses and reasonable attorneys' fees incurred by the Association. In the event an action at law is instituted against the owner or the Owners personally obligated to pay the Assessment, there shall be added to the amount of any such Assessment the interest provided in this Section, the costs of preparing and filing the complaint in such action and the reasonable attorneys' fees incurred in connection with such action; and in the event a judgment is obtained, such judgment shall include interest on the Assessment as provided in this Section and a reasonable attorneys' fee to be fixed by the court, together with the costs of the action. The Association shall have the power to bid on the property at foreclosure or other legal sale and to acquire, hold, lease, mortgage, convey or otherwise deal with the same. Upon the written request of any mortgagee holding a prior lien on any part of the Property, the Association shall report to said mortgagee any Assessments remaining unpaid for longer than sixty (60) days after the

ten request of any mortgagee holding a prior lien on any part of the Property, the Association shall report to said mortgagee any Assessments remaining unpaid for longer than sixty (60) days after the delinquency date of such Assessment.

-1791246 1950 92028 3056 The 4.10 Exempt Property.

following portions of the Property, subject to the Declaration, shall be exempt from the Assessments, charges and liens created in this Declaration: (a) All properties dedicated and accepted by the local public authority, public utilities and devoted to public use; and (b) All Common Area.

the of Portions Property which are exempt from the Assessments, charges and liens created by this Declaration pursuant to Section 4.10(a) shall in any event be subject to all other provisions of this Declaration including, but not limited to, the provisions for Special Individual Assessments as set forth herein. Owners of portions of the Property which are exempt pursuant to Section 4.10(a) shall be Members of the Association but shall have no voting rights.

the 4.11 Estoppel Information from Board of Directors with The Respect to Assessments.

Board of Directors of Association shall upon demand at any time furnish to any owner liable for an Assessment, a certificate in writing signed by an officer of the Association, setting forth whether said Assessment has been paid. Such certificate shall be conclusive evidence of payment of any Assessment therein stated to have been paid. A reasonable charge may be made by the Board for the issuance of such certificates.

owner or owners, as same At may 4.12 Contribution to Landscape Buffer Area Maintenance.

such time as the Landscape Buffer Area is developed by Declarant as a park and pedestrian walkway, the Association shall have

rs, as same At may 4.12 Contribution to Landscape Buffer Area Maintenance.

such time as the Landscape Buffer Area is developed by Declarant as a park and pedestrian walkway, the Association shall have responsibility for maintenance of the Landscape Buffer Area and the improvements located therein. Pursuant to the terms of the Separate Buffer Easement, the change from time to time, of certain property within the Emporium on LBJ development identified in the Separate Buffer Easement shall contribute to the costs of repair, maintenance and/or replacement associated with the Landscape Buffer Area.

Such repair and maintenance costs shared by such owner(s) shall be calculated as set forth in the Separate Buffer Easement and shall be payable to the Association.

4.13 Restaurant Area Right-of-Way Assessments.

Right-of-way shall not be conveyed Area The to the Restaurant Association as Common Area but shall be established by Declarant as a private easement for the benefit of certain of the Tract Owners abutting the Restaurant Area Right-of-Way. However, the Association shall be obligated to maintain the Restaurant Area Right-of-Way pursuant to the terms of the maintenance easement granted to the Association in the Restaurant Area Declaration, -1892028 3057 91246 1951 and the Owners of certain of the Tracts abutting the Restaurant Area Right-of-Way, as same may change from time to time, shall be assessed by the Association for the costs of repair, maintenance and/or replacement associated with the Restaurant Area Right-of-Way. Such assessments shall be levied by the Association and shall be payable by the affected Tract Owners in addition to the Assessments provided for herein.

The assessments for the repair, maintenance and/or replacement costs

be levied by the Association and shall be payable by the affected Tract Owners in addition to the Assessments provided for herein.

The assessments for the repair, maintenance and/or replacement costs of the Restaurant Area Right-of-way shall be shared by certain of the Tract Owners abutting the Restaurant Right-of-Way as set forth in the Restaurant Area Declaration and shall be payable to the Association. The Owners of Estates within portions of the Property which are not subject to the Restaurant Declaration Area shall have no liability for payment of the assessments levied by the Association pursuant to the terms and provisions of the Restaurant Area Declaration.

ARTICLE V GENERAL POWERS AND DUTIES OF THE BOARD OF DIRECTORS OF THE ASSOCIATION 5.01 Powers and Duties. The affairs of the Association shall be conducted by the Board of Directors (herein so called) of the Association. The Board of Directors of the Association shall be selected in accordance with the Articles of Incorporation and the Bylaws of the Association. In addition to the powers and duties enumerated in the Articles of Incorporation and the Bylaws of the Association, or elsewhere provided for herein and without limiting the generality thereof, the Board of Directors of the Association, for the mutual benefit of the Members of the Association, shall have the following powers and/or duties: (a) If, as and when the Board of Directors of the Association, in its sole discretion, deems necessary it may take such action to enforce the terms and provisions of this Declaration and the Articles of Incorporation and the Bylaws of the Association by appropriate means and carry out the obligations of the Association hereunder, including without limitation, the expenditure of funds of the Association, the

ration and the Bylaws of the Association by appropriate means and carry out the obligations of the Association hereunder, including without limitation, the expenditure of funds of the Association, the employment of legal counsel, accounting services and management services, the commencement of legal causes of action, the promulgation and enforcement of the Association rules (herein so called) which may include the establishment of a system of fines and/or penalties enforceable as special individual assessments as provided in Section 4.05 of Article IV to this Declaration, and to enjoin and/or seek legal damages from any Owner for violation of such provisions or rules; -1992028 3058 91246 1952 (b) To acquire, maintain and otherwise manage all of the Common Area and all facilities improvements and landscaping thereon, and all personal property acquired or owned by the Association; (c) To maintain and otherwise manage the Landscape Buffer Area and all facilities improvements and landscaping thereon; (d) To maintain and otherwise manage the Restaurant Area Right-of-Way and all improvements and landscaping thereon and to collect, manage and disburse assessments and charges paid by Owners of Tracts abutting the Restaurant Area Right-of-Way for maintenance and repair of the Restaurant Area Right-of-Way (e) To execute all declarations of ownership for tax assessment purposes and to pay any and all real and personal property taxes and other charges or assessments assessed against the Common Area, unless the same are separately assessed to all or any of the Owners; (f) To obtain, for the benefit of the Common Area, the Landscape Buffer Area, and/or the Restaurant Area Right-of-Way all water, gas and electric services, refuse collections,

ll or any of the Owners; (f) To obtain, for the benefit of the Common Area, the Landscape Buffer Area, and/or the Restaurant Area Right-of-Way all water, gas and electric services, refuse collections, landscape maintenance services and other services, which in the opinion of the Board of Directors shall be necessary or proper; (g) To make such dedications and grant such easements, licenses, franchises or other rights which in its opinion are necessary for street right-of-way, utility, sewer, drainage and other similar facilities or video services, cable television services security services communication services and other similar services over the Common Area to serve the Property or any part thereof; (h) To contract for and maintain such policy or policies of insurance as may be required by this Declaration or as the Board of Directors of the Association deems necessary or desirable in furthering the purposes of and protecting the interests of the Association and its Members; (2) To borrow funds to pay costs of operation secured by assignment or pledge of its rights against delinquent Owners to the extent deemed advisable by the Board of Directors of the Association; (F) To enter into contracts for legal, management and accounting services, maintain one or more bank accounts, and generally, to have the powers necessary or incidental to the operation and management of the Association and the Common Area; -2091246 1953 92028 3059 (k) To enter into agreements for the management of the Landscape Buffer Area, the Restaurant Area Right-of-Way and the Common Area with third parties; (1) To enter into contracts for the provision of security and communications services to the Property; (m) If, as and when the Board of Directors of the

-of-Way and the Common Area with third parties; (1) To enter into contracts for the provision of security and communications services to the Property; (m) If, as and when the Board of Directors of the Association, in its sole discretion, deems necessary it may take action to protect or defend the Common Area or other property of the Association from loss or damage by suit or otherwise (n) To sue and defend in any court of law on behalf of the Association or one or more Members thereof; (0) To establish and maintain a working capital and/or contingency fund in an amount to be determined by the Board of Directors of the Association; (p) To make reasonable rules and regulations for the operation and use of the Estates and the Common Area and to amend same from time to time; provided, however, that any rule or regulation may be amended or repealed by an instrument in writing signed by a majority of the Members or, with respect to a rule or regulation applicable Less than all of the Property, by the Members that portion of the Property affected thereby; to (q) To make available to each Owner and any individual or entity holding a mortgage of deed of trust on any Estate within sixty (60) days after the end of each fiscal year, an unaudited annual report; (r) To adjust the amount, collect and use any insurance proceeds to repair damage or replace lost property owned by the Association, and if the proceeds are insufficient to repair damage or replace lost property owned by the Association, to assesS the Members in proportionate amounts to cover the deficiency as set forth in Section 4.04; (5) To provide services for the benefit of Members, including but not limited to security, entertainment, recreation, education and television cable; and (t)

e deficiency as set forth in Section 4.04; (5) To provide services for the benefit of Members, including but not limited to security, entertainment, recreation, education and television cable; and (t) To delegate its powers and duties to the Architectural Review Committee (with respect to maintenance of and improvements or alterations on the Estates and the Property) or to other committees, officers or employees as provided in the Bylaws of the Association, and/or to employ a manager or other persons and contract with independent contractors or managing -2191246 1954 92028 3060 agents who have professional experience to perform all or any part of the duties and responsibilities of the Association, provided that any contract with a person or entity appointed as a manager or managing agent shall be terminable without cause on not more than thirty (30) days' written notice by the Association and shall have a term of not more than one (1) year with successive one (1) year renewal periods upon the mutual agreement of the parties.

have the right, administer other 5.02 Other Parties' Right-of-Way. In addition to the powers, rights, duties and obligations of the Board of Directors set forth above, the Board of Directors shall power and obligation to operate, maintain and private rights-of-way within the Property in accordance with documents and instruments and maintenance and assessment procedures similar to those existing and implemented with respect to the Restaurant Area Right-of-Way In ar any event, only those Owners which benefit from the private right-of-way shall be responsible for payment of the cost of operating maintaining any such private rights-of-way and the owners as a whole shall not be responsible for payment of such costs.

ARTICLE VI

ght-of-way shall be responsible for payment of the cost of operating maintaining any such private rights-of-way and the owners as a whole shall not be responsible for payment of such costs.

ARTICLE VI PROPERTY RIGHTS IN THE COMMON AREA and 6.01 Members' Easements of Enjoyment. Subject to the provisions of Section 6.03 of this Article, and subject to the rights of the City and the public in and to the Landscape Buffer Area, every Member and every tenant of every Member shall have a right and easement of use and enjoyment in and to the Common Area and such easement shall be appurtenant to and shall pass with the title of every Estate, and shall not be severable therefrom; PROVIDED, HOWEVER, such easement shall not give such person the right to make alterations, additions or improvements to the Common Area, 6.02 Title to the Common Area. The Declarant shall dedicate and convey (at such time as any Common Area shall be created by the Declarant) the title to those portions of the Common Area owned by the Declarant, in fee or as an easement to the Association, free and clear of liens and encumbrances other than those created in this Declaration and such Common Area shall be accepted, in writing, by the Association. Fee title to the real property within the Separate Buffer Area shall not be conveyed to the Association and shall remain in the individual owner thereof. However, fee title to the real property encumbered by the Park and Pedestrian Walkway Easement, together with any maintenance and access easements as are appurtenant to the Buffer Easements, shall be conveyed to the Association and -2292028 3061 91246 1955 designated as Common Area at such time as the improvements to be constructed by Declarant within the Landscape Buffer Area shall

ts, shall be conveyed to the Association and -2292028 3061 91246 1955 designated as Common Area at such time as the improvements to be constructed by Declarant within the Landscape Buffer Area shall be owned by the Association and the rights and obligations of the Declarant under and pursuant to the Buffer Easement may be assigned by the Declarant to the Association and such rights and obligations assumed in writing by be expressly Association.

shall the 6.03 Extent of Members' Easements. The rights and easements of enjoyment created hereby shall be subject to the following: (a) The right of the Association to prescribe regulations governing the use, operation and maintenance of the Common Area; (b) Liens of mortgages placed against the common Area with respect to monies borrowed by the Association for the purpose of improving the Common Area and facilities; or or an (c) The right of the Association to enter into and execute contracts with third parties (including the Declarant, affiliate of the Declarant, so long as such contracts do not provide for compensation to the Declarant, its affiliate, which exceeds compensation which would be paid to an independent third party for such services) for the purpose of providing maintenance or for such other materials or services consistent with the purposes of the Association: (d) The right of the Association to take such steps as are necessary reasonably foreclosure; and to protect the Common Area against (e) The right of the Association, as may be provided in its Bylaws, to suspend the voting rights of any Member for any period during which hich any Assessment against an Estate owned by such Member remains past due, and for any period not to exceed sixty (60) days for an infraction of its rules and regulations

for any period during which hich any Assessment against an Estate owned by such Member remains past due, and for any period not to exceed sixty (60) days for an infraction of its rules and regulations unless the Member Member in good faith contests such Assessment rules and regulations.

or ARTICLE VII INSURANCE; REPAIR AND RESTORATION or The Association's Board of Directors 7.01 Insurance.

its duly authorized agent shall have the authority to and shall obtain insurance for all insurable improvements on the Common This insurance Area (including the Landscape Buffer Area).

shall cover loss or damage by fire or other hazard including extended coverage, vandalism, and malicious mischief and shall -2392028 3062 91246 1956 be in an amount sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hazard.

a The Board of Directors of the Association shall obtain public liability policy applicable to the Common Area covering the Association and its Members for all damage or injury caused by the negligence of the Association or any of its Members or agents. The public liability policy shall cover all Common Areas and public ways on or about the Property. Such coverage shall not be for less than Two Million Dollars ($2,000,000.00) for bodily injury, including deaths of persons and property damage arising out of a single occurrence. Such coverage shall include, without limitation, legal liability of the insureds for property damage, bodily injuries and deaths of persons in connection with the operation, maintenance or use of the Common Area (including the Landscape Buffer Area) and legal liability arising out of lawsuits relating to employment contracts of the

ersons in connection with the operation, maintenance or use of the Common Area (including the Landscape Buffer Area) and legal liability arising out of lawsuits relating to employment contracts of the Association. Directors' and officers' liability insurance shall be obtained if reasonably available.

Premiums for all insurance shall be common expenses of the Association. The policies may contain a reasonable deductible, and the amount thereof shall be added to the face amount of the policy in determining whether the insurance insurance at least equals the full replacement cost.

All such insurance coverage obtained by the Board of Directors of the Association shall be written in the name of the Association as trustee, for the respective benefitted parties, as further identified in subparagraph (b) below. Such insurance shall be governed by the provisions hereinafter set forth: (a) All policies shall be written with a company licensed to do business in Texas and holding a rating of XI or better in the Financial Category as established by A.M. Best Company, Inc., if available, or, if not available, the most nearly equivalent rating.

(b) All policies shall be for the benefit of the Owners and their mortgagees, as their interests may appear.

(c) Exclusive authority to adjust losses under policies obtained by the Association shall be vested in the Association's Board of Directors; provided, however, no mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related thereto.

(d) In no event shall the insurance coverage obtained and maintained by the Association's Board of Directors hereunder be -2492028 3063 91246 1957 brought into contribution with insurance purchased by individual

nt shall the insurance coverage obtained and maintained by the Association's Board of Directors hereunder be -2492028 3063 91246 1957 brought into contribution with insurance purchased by individual Owners, occupants, or their mortgagees, and the carried by the Association shall be primary.

insurance (e) All casualty insurance policies shall have an inflation guard endorsement, if reasonably available, and an agreed amount endorsement with an annual review by one or more qualified persons, at least one of whom must be in the real estate industry and familiar with construction in the Dallas County, Texas, area.

licies (f) The Association's Board of Directors shall be required to make every reasonable effort to secure insurance policies that will provide for the following: (i) a waiver of subrogation by the insurer as to any claims against the Association's Board of Directors, its manager, the Owners and their respective tenants, servants, agents, and guests; (ii) a waiver by the insurer of its rights to repair and reconstruct instead of paying cash; (iii) that no policy may be cancelled, invalidated or suspended on account of any one or more individual Owners; (iv) that no policy may be cancelled, the invalidated, or suspended on account of any defect or conduct of any director, officer, or employee of the Association or its duly authorized manager without prior demand in writing delivered to the Association to cure the defect or to cease the conduct and the allowance of a reasonable time thereafter within which a cure may be effected by the Association, its manager, any Owner or mortgagee: (v) that any "other insurance" clause in any policy exclude individual Owners' policies from consideration; and that no policy may be cancelled or

the Association, its manager, any Owner or mortgagee: (v) that any "other insurance" clause in any policy exclude individual Owners' policies from consideration; and that no policy may be cancelled or substantially modified without at least ten (10) days prior written notice to the Association.

In addition to the other insurance required by this Section, the Board of Directors of the Association shall obtain workmen'S compensation insurance, if and to the extent necessary, to satisfy the requirements of applicable laws and a fidelity bond or bonds on directors, officers, employees, and other persons handling or responsible for the Association's funds. The amount of fidelity coverage shall be at least the -2591246 1958 92028 3064 sum of three (3) months' Assessments plus reserves on hand.

Bonds shall contain a waiver of all defenses based upon the exclusion of persons serving without compensation and may not be cancelled or substantially modified without at least ten (10) days' prior written notice to the Association.

7.02 Insurance Proceeds. Proceeds of insurance shall be or disbursed by the insurance carrier to the Association contractors designated by the Association as the Board of Directors may direct. The Association shall use the net insurance proceeds to repair and replace any damage or destruction of property, real or personal, covered by such insurance. Any balance from the proceeds of insurance paid to the Association, as required in this Article, remaining after satisfactory completion of repair and replacement, shall be retained by the Association as part of a general reserve fund for repair and replacement of subject property.

7.03 Insufficient Proceeds. If the insurance proceeds are insufficient to repair or replace any loss or damage to the

as part of a general reserve fund for repair and replacement of subject property.

7.03 Insufficient Proceeds. If the insurance proceeds are insufficient to repair or replace any loss or damage to the Common Area (including the Landscape Buffer Area) or the improvements thereon or appurtenant thereto, the Association may levy a special assessment as provided for in Article IV of this Declaration to cover the deficiency, If the insurance proceeds are insufficient to repair or replace any loss or damage for which an Owner is bound hereunder, such Owner shall, as his undivided responsibility, pay any excess costs of repair or replacement.

a or 7.04 Mortgagee Protection There may be attached to all policies of insurance loss or damage by fire and other againston hazards, mortgagee's lender's loss payable clause; provided, however, that amounts payable under such clause to the mortgagee shall be paid to the Association to hold for the payment of all costs of repair or replacement. The Association shall be responsible to hold said monies or to collect additional monies if the proceeds are insufficient to pay for the cost of all repairs or replacements and shall ensure that all mechanics' materialmen's and similar liens which may result from said repairs or replacements are satisfied.

repairs or In 7.05 Destruction of Improvements on Individual Estates.

the event of destruction (total or partial) to the improvements on any individual Estate due to fire or any other cause, each Estate Owner covenants and agrees to commence all necessary repairs, reconstruction complete removal of the damaged improvements within four (4) months of the date that the damage occurs and to diligently continue such repairs, reconstruction or removal until completed within a reasonable time from the

the damaged improvements within four (4) months of the date that the damage occurs and to diligently continue such repairs, reconstruction or removal until completed within a reasonable time from the commencement of such work. Repairs, reconstruction or complete or -2692028 3065 91246 1959 removal of damaged improvements may be commenced more than four (4) months after the date of occurrence of damage if the delays in commencement are caused by factors beyond the reasonable control of the Owner of the damaged improvements. The Board of Directors of the Association shall not be obligated to enforce the covenants set forth in this Section 7.05.

ARTICLE VIII USE OF PROPERTY The Property shall be constructed, developed, occupied and used as follows: 8.01 Restricted Actions by Owners. No Owner shall permit anything to be done on or in the Common Area or any Estate or Unit which would violate any applicable public law or zoning ordinance or which will result in the cancellation of or increase of any insurance carried by the Association, or which would be in violation of any law. No waste shall be committed in the Common Area.

8.02 Damage to the Common Area Each Owner shall be liable to the Association for any damage to the Common Area caused by the negligence or willful misconduct of of the owner or his family, guests, pets or invitees.

8.03 Rules of the Board. All Owners, tenants and occupants shall abide by any rules and regulations adopted by the Board.

The Board shall have the power to enforce compliance with said rules and regulations by all appropriate legal and equitable remedies, and an owner determined by judicial action to have violated said rules and regulations shall be liable to the Association for all damages and costs, including reasonable

legal and equitable remedies, and an owner determined by judicial action to have violated said rules and regulations shall be liable to the Association for all damages and costs, including reasonable attorneys' fees. The Bylaws of the Association may also provide for disciplinary procedures which may, at the option of the Board, be implemented to enforce such rules and regulations and to impose penalties for failure to comply with such rules and regulations 804 Use of Landscape Buffer Area. That portion of the Common Area ineluded within the Landscape Buffer Area may be occupied and used by the general public as well as by all Estate Owners, for the purposes set forth in the Buffer Easements.

8.05 Commercial Use. Except as otherwise provided herein, each Estate shall be used and occupied only for commercial purposes and Commercial Use (as herein defined).

-2792028 3066 91246 1960 8.06 Laws and Ordinances. No Owner or occupant shall permit anything within such Owner's or occupant's control to be done or kept in any building or on his Estate which would violate any applicable public law or zoning ordinance or which will result in the cancellation of, or increase other premiums(s) for, any insurance carried by any Owner, or which would be in violation of this Declaration. In the event of a conflict between restrictions contained herein and the zoning ordinance of the City of Mesquite, Texas, the more restrictive shall apply.

8.07 Animals. No animals, livestock or poultry shall be raised, bred or kept in any portion of the Property.

8.08 Signs. The location and design of all signs must be approved in writing by the Architectural Review Committee and should conform to the Design Guidelines-promulgated by the Architectural Review Committee.

s. The location and design of all signs must be approved in writing by the Architectural Review Committee and should conform to the Design Guidelines-promulgated by the Architectural Review Committee.

8.09 Vehicle Storage. Storage or long-term parking (in excess of 24 hours) of campers, boats, trailers or motor homes is prohibited.

8.10 Dangerous Uses. Dangerous or unsafe uses such as handling, storing or otherwise dealing with explosives is prohibited. No oil, gasoline or flammable liquid should be stored in bulk of more than 55 gallons gross capacity except in underground storage tanks.

8.11 Nuisance. No use of activity shall be conducted on any Estate if the same results in or constitutes a nuisance, including, without limitation, any nuisance resulting from vibration, sound, electromechanical disturbance and radiation, electromagnetic disturbance and radiation, air or water pollution, dust or emission of toxic or odorous nontoxic matter.

8.12 Offensive Activities. No noxious or offensive activity shall be conducted on any Estate nor shall anything be done thereon which is or may become an annoyance or nuisance to the other Estate Owners. The Architectural Review Committee, in its reasonable discretion, shall determine what constitutes noxious or offensive activity, pursuant to this Section 8.12 or Section 8.11 above.

a 8.13 Subdividing. Further subdividing of parcels of land or submitting of an application or a request for a zoning change prohibited without the prior written approval of the Architectural Review Committee.

is -2892028 3067 91246 1961 8.14 Temporary Structures. No temporary structure, tent, shack or barn of any kind shall be erected or placed upon any Estate. It is provided, however, that Declarant may maintain

2028 3067 91246 1961 8.14 Temporary Structures. No temporary structure, tent, shack or barn of any kind shall be erected or placed upon any Estate. It is provided, however, that Declarant may maintain temporary sales or construction offices, provided such sales or construction offices are removed within sixty (60) days after completion of sales or construction, as the case may be. In addition, Declarant or Owners may conduct their sales and marketing program from the Property from any Estates owned by them and/or from temporary sales building(s) or trailers, and Declarant may also conduct its construction and development operations and activities on the Property and, in connection therewith, do all things reasonably necessary or convenient in order to most expeditiously commence, continue and complete such construction and development operations, specifically including, but not limited to, construction and maintenance of temporary buildings and trailers for storage of construction materials and equipment and open storage of uncovered building materials and equipment. It is further provided that any builder (other than Declarant) employed by an Owner to construct improvements on said Owner's Estate may conduct its construction construction operations op and activities on such Estate and, in connection therewith, do all things reasonably necessary in order to most expeditiously commence, continue and complete such construction operations, specifically including, but not limited to, construction and maintenance of temporary buildings and/or trailers for storage of construction materials and equipment, provided however, that all such construction operations and storage shall be confined solely writing the boundaries of the Estate on which such construction is occurring.

tion materials and equipment, provided however, that all such construction operations and storage shall be confined solely writing the boundaries of the Estate on which such construction is occurring.

8.15 Drilling and Mining Operations. No oil drilling, water drilling or development operations, oil refining, quarrying or mining operations of any kind shall be permitted upon or in any Estate, nor shall oil wells, water wells, tanks, tunnels, mineral excavations or shafts be permitted upon any Estate.

8.16 Swimming Pools. No above ground swimming pools shall be permitted except upon the prior written approval of the Architectural Review Committee.

8.17 External Sculpture and Like Accessories. All exterior sculpture, fountains, flags and like accessories on the Estates are subject to approval of the Architectural Review Committee.

8.18 Antennas. No television, radio or other electronic antenna, satellite dish or device of any type shall be erected, constructed, placed or permitted to remain on any of the Estates or improvements constructed thereon unless and until the same shall have been approved in writing by the Architectural Review Committee and only if such antenna or other device is completely screened from public view.

-2991246 1962 92028 3068 a 8.19 Certificate of Compliance. No Estate or any other portion of the Property shall be deemed to be improved or altered in compliance with this Article or Articles IX or X, hereof until Architectural Review Committee has approved such improvement or alteration as provided herein. An owner making such improvement or alteration may request and, if the improvement or alteration is in compliance with all provisions herein, the Architectural Review Committee shall issue

ded herein. An owner making such improvement or alteration may request and, if the improvement or alteration is in compliance with all provisions herein, the Architectural Review Committee shall issue Certificate of Compliance with these covenants and restrictions to the Owner of such Estate or such other portion of the Property. Such Certificate shall only be issued after completion (as defined by the American Institute of Architects) of the subject commercial improvements and shall be issued or denied within ten (10) business days after the Committee has received a written request for such certification from the Estate Owner. Receipt of such written request for certification shall be confirmed in writing by the Committee and certification shall be deemed given if not denied in writing within said ten (10) business day period.

8.20 Other Prohibited Uses.

prohibited and may not be conducted (a) Residential of any type; (b) Trailer courts, vehicle campgrounds; The uses are parks and recreation (c) Schools; except as may be approved in writing by the Architectural Review Committee; (d) Junk yards facilities; Unofficial Cov (e) materials, improvements; except (f) usual of bones; disposal, of building or construction of construction of course incineration or reduction of garbage, sewage, offal, dead animals or refuse; Fat rendering; (i) Stockyard or slaughter of animals; (j) Refining of petroleum or of its products; (k) Something of iron, tin, zinc or other ores; -3091246 1963 92028 3069