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HomeMy WebLinkAboutDeed RestrictionsRe-record to correct pages 5,6 , 7. •BILI. & RETURN TO: BP,AZOS C(XJ' CT� ANY DECLARATION OF EASEMENTS, COVENANTS, CONDITIONS AND RESTR'IP-TI(9N5` This Declaration of Easements, Covenants, Conditions and Restrictions (this "Agreemeat") is µ made and entered into effective as of the L4day of February, 2010 (the "Effective Date % by and between HER Grocery Company, LP, a Texas limited partnership ("IIEV) and College Station v o Marketplace, L.P., a Texas limited partnership C"CS Marketplace"). M ' ow ARTICLE Recitals we. Or 1.1 HEB Parcel. HBB is the owner of that certain approximately 16.29 acre parcel of real property (the 'HER Parcel") situated in the City of College Station, Brazos County, Texas, located at roe Highway 6 and Highway 40, as more particularly described by metes and bounds on Exhibit A attached hereto and made a part hereof for all purposes. 1.2 CS Marketplace Parcel. CS MarketPlace is the owner of that certain approximately 50.55 acre parcel of real property (the "CS Marketplace Parcel") situated in the City of College Station, Brews County, Texas, located at Highway 6 and Highway 40, as more particularly described by metes and bounds on Exhibit B attached hereto and made. a part hereof for all purposes, 1.3 Purpose. HEB and CS Marketplace desire to (t) subject the HEB Parcel and the CS Marketplace Parcel to certain easements, coven", conditions and restrictions, pursuant to which the Parcels (as defined hereinbelow) shall be held, improved and conveyed, and (ii) set forth certain responsibilities and obligations of HBB and CS Marketplace with respect to the development of the HER Parcel and the CS MarketPlace Parcel for their joint benefit as adjacent landowners. NOW, THEREFORE, in consideration of the premises, the sum of Ten and No/l00 Dollars ($10.00), and other good and valuable consideration in hand paid, and in consideration of the mutual agreements herein made, the receipt and sufficiency of which are hereby acknowledged and confessed, the undersigned hereby agree as follows: ARTICLE 2 Definitions 2,1. Access Drives. Those certain critical access drives situated in the Shopping Center that are labeled "Critical Access Drive" and/or "Permanent Service Drive" on the Site Plan and the access points from such drives onto adjoining public and private rights -of -way. 2.2. Building_ Restriction Plan. That certain building plan attached hereto as Exhibit E setting forth the Maximum Floor Area(s), maximum building height(s), building setback lines, finished floor elevations and other matters concerning the construction of building improvements on the CS MarketPlace Parcel. 2.3. Common Areas. Those certain parking areas, drives, curb cuts, roadways, driveways and drive lanes on the HBB Parcel which are available from time to time on the HEB Parcel for the general, common, non-exclusive use, convenience and benefit of the Owners, Occupants and Permittees of the HEB Parcel, as the same may exist from time -to -time; such areas being referred to herein as the "HEB Parcel Common Area;" and those certain drives, curb cuts, roadways, driveways and drive lanes on the CS Marketplace Parcel which are available from time to time on the CS Marketplace Parcel for the general, common, non-exclusive use, convenience and benefit of the Owners, Occupants and Permittees of the CS 062007,00600/2973940 Doc PL Vol M056761 OR 95330 F99 ' 01052d� p Uo"g;y� Marketplace Parcel, as the same may exist from time -to -time; such areas being referred to herein as the "CS Marketplace Parcel Common Area." The BEB Parcel Common Area together with the CS Marketplace Parcel Common Area shall be referred to herein as the "Common Areas." The Common Areas shall not include outdoor sales areas, loading docks or drive-thm(s) or loading areas situated within the Shopping Center. The Common Areas shall specifically include the Access Drives. CS Marketplace shall not modify the Access Drives situated on the CS Marketplace Parcel without HEB's prior written consent, in its commercially reasonable discretion, and HEB shall not modify the Critical Access Drive situated on the BBB Parcel in any material respect without the prior written consent of the Owners of seventy-five percent (75%) of the land area of Lots Al, A4 and C5, as shown on the Site Plan (collectively, the "Approving Lot Owners') in such Owner's commercially reasonable discretion, provided however that the Approving Lot Owners shall not have the right to approve such Critical Access Drive if HEB provides comparable alternate access. 2.4. Development Plans. Those certain conceptual site plans (each being referred to individually as a "Development Plan") of the Property that have been approved by the Parties and are attached hereto as Exhibits C-1 through C-5 and made a part hereof. 2.5. Floor Area. The total number of square feet of floor area located within the perimeter walls of a particular building(s) constructed on the Shopping Center, as the same are constructed from time -to -time, which number of square feet shall be based upon measurements extending from the midpoint of the demising walls of such building(s) and the exterior surface of the perimeter walls of such building(s). Floor Area shall not include outdoor sales or seating areas, which are not heated or air- conditioned, mezzanines used only for stock, storage and related offices and non -sales uses located therein, drive -thins or loading docks/areas and ramps. 2.6. Force Maiepre. An Act of God, fire, earthquake, flood, explosion, action of the elements, war, invasion, insurrection, riot, mob violence, sabotage, strike, lockout, action of labor unions, requisitions, laws, or orders of government or civil or military authorities, which excuses, prevents, delays retards or hinders the performance of an obligation or undertaking under this Agreement; provided that the party asserting the existence of an event resulting in force majeure must give written notice to the other party notifying it of such fact within ten (10) days following the occurrence of such event. 2.7. BBB Building. The building depicted as "HEB Building" on the Site Plan, as the same may be modified, expanded, and altered within the IM Parcel from time -to -time. 2.8. Ocen ant. Any Person, from time to time, entitled to the use and occupancy of any portion of the Shopping Center under any lease, sublease, license, concession or other similar agreement 29. Owner. The record owner of fee simple title to all or any portion of the Shopping Center, but excluding those having such interest merely as security for the performance of any obligation pursuant to third party financing. 2.10. Pad. Those portions of the Shopping Center depicted as "Future Pad" or "Pad" on the Site Plan. 2.11. Parcel. Each of the HBB Parcel and the CS Marketplace Parcel, and any subdivisions thereof, including but not limited to all or any portion of a Pad acquired by an Owner. Each such Parcel within the Shopping Center is sometimes hereinafter collectively referred to as the "Parcels". 2.12. Party. Bach of BEB and CS MarketPlace, and their respective successors or assigns. 2 062007.00600 12M9v20 41454761 DR Q830 100 } 01453 r Bk Vol N .. _44 2.13. PermissibleBuilding Areas. AD those areas in the Shopping Center upon which buildings or other commercial structures (including canopies, supports, loading docks, truck ramps, and other outward exteriors) may be constructed that are depicted as "Permissible Building Areas" on the Site Plan, subject to the maximum Floor Area applicable thereto ("Maximum Floor Area"), which Maximum Floor Area for the CS Marketplace Parcel is designated on the Building Restriction Plan. The entire l3EB Parcel shall be deemed a Permissible Building Area for all purposes hereunder. 2.14, Permittee. All Owners, Occupants and the partners, officers, directors, employees, agents, contractors, customers, vendors, suppliers, visitors, invitees and licensees of Owners and Occupants. 2.15. Peen. Individuals, partnerships, firms, associations, corporations, busts, governments] agencies, administrative tribunals or any other form of business or legal entity. 2.16. Shopping Center. Collectively, the ME Parcel and the CS MarketPlace Parcel. 2.17. Site Development Agreement That certain Site Development Agreement dated of even date herewith between MEB and CS MarketPlace pertaining to the construction of the Site Work (as defined in the Site Development Agreement), as more particularly described therein. 2.18, Site lan. That certain multi -page site plan of the Shopping Center attached hereto as Exhibit C pages 1-3, and made a part hereof. AR11CLE 3 Building and Common Area Development 3.1 Location of Buildings. No buildings or other structures shall be constructed, erected or maintained on the Shopping Center except within the Permissible Building Areas, as depicted on the Site Plan, subject to the Maximum Floor Area applicable thereto set forth in the Building Restriction Plan; provided that the foregoing shall not apply to (1) screening walls or fences at the rear of buildings, signage, light fixtures, utility facilities or landscaping features; (ii) temporary construction trailers or facilities maintained on the Shopping Center in accordance with Section 3.8 during periods of continuous construction; or (iii) the HEB Parcel, the entirety of which is deemed a Permissible Building Area for all purposes hereunder. Notwithstanding the foregoing, up to two (2) adjacent lots of Lots B 1, B2, and/or B3 and up to two (2) adjacent lots of Lots 1)4, D5, D6, D7 and/or D8, as shown on the Site Plan may be combined as one (1) and the Maximum Floor Area applicable to such Lots aggregated to allow the construction of a single larger building on such two Lots, provided that the resulting building or other structure is situated not closer than 1000' feet from the entrance of the ME Building and the Maximum Floor Area of any buildings constructed on such combined Lot shall not exceed seventy-five percent (75%) of the combined Maximum Floor Area of such Lots individually. Notwithstanding the Maximum Floor Area set forth on the Building Restriction Plan applicable to Lots Al, A2 and A3, in no event shall the combined Floor Area of all buildings constructed on such Lots exceed 15,000 square feet in aggregate. 32 Use of Common Area. The Common Area is reserved for the sole and exclusive use of all Owners, Occupants and their Permittees. The Common Area may be used for vehicular driving, parking, pedestrian traffic, directional signs and any signage permitted hereunder, sidewalks, walkways, landscaping, perimeter walls and fences, parking lot lighting, utilities, and for no other purpose. Except as specifically provided in Article 4 no Owner, Occupant, or Permittee of such Owner or Occupant shall have any rights or interests in the Common Areas situated on another Owner's Parcel. No portion of the Common Areas shall be used for the storage, display or sale of merchandise, except sidewalks immediately adjacent to the Floor Area of a Permissible Building Area; for advertising or solicitation, 062007.00600 129739v20 Doc el: Vol Rs j 01054-761 OR 9530 101 —° -ok�v' 1 P9 01052637 OR 949 except signs expressly authorized under this Agreement; or for festivals or other activities not expressly authorized in this Agreement or approved in advance by HEB and CS Marketplace. Notwithstanding the foregoing, (a) HEB is specifically permitted to use each of the following on the HEB Parcel for the storage, display or sale of merchandise: (i) any area adjacent to the HEB Building and/or other building improvements constructed on the NBB Parcel, including but not limited to sidewalk areas, and (ii) any portion of the parking lot situated in front of the BED Building and/or other building improvements constructed on the DEB Parcel; and (b) CS Marketplace is specifically permitted to use each of the following on the CS MarketPlace Parcel for the storage, display or sale of merchandise: (i) any sidewalk area adjacent to the building improvements constructed on the CS Marketplace Parcel, and (ii) with respect to Areas B and D only, any portion of the parking lot situated in front of the building improvements constructed on the CS Marketplace Parcel. 3.3 Parldnit. Each Owner shall maintain on its respective Parcel: (a) with respect to the MM Parcel and Areas A and C, not less than five (5) parking spaces for each one thousand (1,000) square feet of Floor Area for retail use, eight (8) parking spaces for each one thousand (1,000) square feet of Floor Area for restaurant use, and three (3) parking spaces for each one thousand (1,000) square feet of Floor Area for office use, without variance or reliance on any other parking spaces available in the Shopping Center; and (b) with respect to retail, restaurant and office use on Areas B and D, parking sufficient to satisfy all applicable governmental laws, including but not limited to the Unified Development Ordinance established by the City of College Station, as amended from time to time; provided however that HEB shall have the right to approve the parking plan for any other use on Areas B and D, including but not limited to hotel, campus, hospital, medical park and/or movie theater uses if any of such uses are not consistent with the approved Development Plans. In addition, all Pads in the Shopping Center shall be required to self park, without variance or reliance on any other parking spaces available in the Shopping Center; provided however that the foregoing restriction shall not apply to any retail and/or restaurant use on the Pads situated on Areas B and D. In the event of a condemnation of part of a Parcel or sale or transfer in lieu thereof that reduces the number of usable parking spaces below that which is required herein, the Owner whose Parcel is so affected shall use its reasonable good faith efforts (including using proceeds from the condemnation award or settlement) to restore and/or substitute parking spaces in order to comply with the parking requirements set forth above. If such compliance is not possible, such Owner shall not be deemed in default hereunder, but shall not be permitted to expand the amount of Floor Area of buildings located upon its Parcel. If such Floor Area is thereafter reduced, then it may not subsequently be increased unless the parking requirement is satisfied. 3.4 Ouality of Construction. Bach building in the Shopping Center, now and in the future, shall be of fast -quality design and construction, consistent with other similar developments in College Station, Texas. 3.5 Structural Inteerity, No building shall be built in such a manner as to adversely affect the structural integrity of any other building in the Shopping Center. 3,6 Building Heim, No building within the Shopping Center may exceed the height restriction applicable thereto, as set forth in the Building Restriction Plan (other than the HEB Building and other improvements to be situated on the HBB Parcel for which there shall be no height restriction under this Agreement), measured from the finished floor elevation of such building as set forth in the Building Restriction Plan. 3.7 Common Boundary Construction. No common wall, party wall or abutting well on or adjacent to the property lines between the HEB Parcel and the CS Marketplace Parcel shall be permitted. In addition, no buildings or improvements shall hereafter be placed or constructed on the CS Marketplace Parcel that would cause any building on the HEB Parcel, including the HEB Building, to lose its 062007.00600 12M9✓M Doc 8k Vol Ps OlOS4761 OR 9530 102 01032637 OR 44S "unlimited area" classification (or its equivalent classification). As used herein, an "unlimited area" classification or its equivalent shall refer to the classification of any building, pursuant to fire or building codes and ordinances, as the same are interpreted by the applicable governmental authorities, as not having a fire rating and as not having a maximum limit on floor area. In order for any building on the HEB Parcel to maintain an "unlimited area" classification, any building or structure on the CS MarketPlace Parcel must be located at least sixty feet (60') from the, HEB Building. Accordingly, any buildings or structures hereafter placed or constructed on the CS MarkelPlace Parcel shall comply with all building code requirements so as to permit any buildings on the HEB Parcel to maintain an `4ndimited area" classification or its equivalent (i.e., any building on the CS Marketplace Parcel shall be located a minimum of sutty feet (60') from the HEB Building). Notwithstanding anything contained in this Scotton 3.7. so long as any building on the CS Marketplace Parcel is located a minimum of sixty feet (60') from the HEB Building, CS Marketplace shall be deemed to have satisfied the terms, provisions and conditions of this Section 3.7. 3.8 Performance of Construction. All work performed and the construction, maintenance, repair, replacement, alteration or expansion of any building, sign or Common Area improvements located in the Shopping Center shall be performed in a good and workmanlike manner and in compliance with all laws, rules, regulations, orders and ordinances of all applicable governmental authorities and shall be affected as expeditiously as possible and in such a manner as not to unreasonably interfere, obstruct or delay (i) access to and from the Shopping Center, or any part thereof, to or from any public right-of-way, or (ii) the receiving of merchandise by any business in the Shopping Center. Staging for the construction, replacement, alteration or expansion of any building, sign or Common Area improvements located on the Shopping Center including, without limitation, the location of any temporary buildings or construction sheds, the storage of building materials, and the parking of construction vehicles and equipment shall be limited to the Parcel owned by the Owner on whose Parcel such construction activity is occurring, unless the Owner of another Parcel has consented in writing to such staging on its Parcel. 3.9 Damage or Destruction. If all or arty portion of any building located on an area in which a building is permitted hereunder is (i) damaged or destroyed by fire or other casualty, or a taken or damaged as a result of the exercise of the power of eminent domain or any transfer in lieu thereof, each Owner of a Parcel, respectively, as to all buildings or structures situated on the portion of the Shopping Center owned by it, shall promptly restore or cause to be restored the remaining portion of such building or structures or, in lieu thereof shall remove or cause to be removed the damaged portion of such building or structures together with all rubble and debris related thereto. All areas on which damaged buildings are situated and are not reconstructed following a casualty or condemnation shall be graded or caused to be graded by the respective Owner to the level of the adjoining property and in such a manner as not to materially and adversely affect the drainage of the Shopping Center or any portion thereof, shall be covered by a one -inch (I") asphalt dust cap or appropriate grass or landscaping and shall be kept weed free and clean at said Owner's sole cost and expense until buildings are reconstructed thereon. if all or any portion of any Access Drives is () damaged or destroyed by fire or other casualty, or (ii) taken or damaged as a result of the exercise of the power of eminent domain or any transfer in lieu thereof each Owner of a Parcel, respectively, as to the Access Drives situated on the portion of the Shopping Center owned by 14 shall promptly restore or cause to be restored the Access Drives or in the event of a taking a relocated Access Drive approved by the Owners of a minimum of two thirds of the land area of the Shopping Center, which approval shall not be unreasonably withheld, conditioned or delayed. 3.I0 Sigynage. All signage constructed upon the Shopping Center, including but not limited to monument, pylon, and directional signage, shall be of first quality construction and constructed in accordance with all applicable governmental requirements. The Shopping Center pylon signs shall be in the location(s) depicted on the Site Plan as "Pylon Sign 2", "Pylon Sign 3" and "Pylon Sign 4" (each a "Pylon Sign" and collectively the "Pylon Signs") and shall comply with the approved sign elevations pGSW 5 A 062007.00600 129739M !ier- M Vol Ps 01054761 OR 9530 103 Vol Ps 01053637 OR applicable to each such Pylon Sign attached hereto as Exhibit D (the "Sign Plan"); provided that in no event shall any Owner or Occupant in the Shopping Center be permitted to combine sign panels on any one (1) Pylon Sign to exceed seventy-five percent (750%) of the area of the HEB sign panel on such Pylon Sign; provided that with respect to Pylon Sign 3, the HEB sign panel shall not include HEB's retail tenant sign panels for purposes of this sign area limitation. Notwithstanding the foregoing, in addition to compliance with applicable governmental rules and regulations, (J) no more than one (1) monument sign may be constructed on each platted lot in the CS Marketplace Parcel within the locations designated on the Site Plan as the "Highway 40 Sign Envelope" and/or the "Highway 6 Sign Envelope", provided that each such monument sign shall not exceed four feet (4') in height or sixty feet (60') in area and (i7 CS Marketplace shall have the right to construct a pylon sign in the location depicted on the Site Plan as the "CSMP Pylon Sign"; provided that the CSMP Pylon Sign shall comply with the approved sign elevations therefor attached hereto as Exhibit D-1. CS Marketplace shall be responsible for maintaining the Pylon Signs on the CS Marketplace Parcel and the HEB Parcel; provided, however, that HEB shall reimburse CS MarketPlace for (i) the cost of HEB's sign faces including the sign panels on Pylon Sign 3 available for HEB's retail tenants on the HEB Parcel (or pay such amounts directly), and (ii) HEB's pro-rata share of the outof-pocket costs incurred by CS MarketPlace to maintain the Pylon Signs on which HEB's sign panels shall be located from time -to -time; provided, however, that such costs are reasonably approved in advance by HEB pursuant to a budget submitted by CS Marketplace annually. For purposes hereof; HEB's pro-rata share of the Pylon Sign costs shall equal the ratio, expressed as a percentage, that the square foot area of the face of HEB's signs and the signs for its retail tenants on the HEB Parcel, in aggregate, bears to the total square foot area of the faces of all signs planned to be located on the Pylon Signs. HEB's pro-rata share of such Pylon Sign costs shall be payable within thirty (30) days following its receipt of a written request therefor from CS MarketPlace (but in no event more than quarterly). Except as provided above, each Owner shall maintain any signage located on its respective Parcel, at its sole cost and expense. 3.11 Lighting. The lighting standards within the parking areas on Areas A and C and the Access Drives shall at all times following construction thereof satisfy the following requirements: a minimum of 5-6 foot candle average lighting, as measured at the ground with 24-hour security lamp at locations acceptable to HEB. Each party shall satisfy the lighting standards set forth above on a daily basis, commencing (a) with respect to the Access Drives, at least one (1) hour prior to store opening(s) on the HEB Parcel and continuing for at least one (1) hour after the closing of store operations on the HEB Parcel, and (b) with respect to the parking areas on Areas A and C, at dusk and continuing until dawn. ARTICLE 4 Easements 4.1 Reciprocal Access Easements. HEB hereby GRANTS, SELLS and CONVEYS unto CS Marketplace, for the benefit of CS Marketplace and its Permittees, a non-exclusive perpetual easement for ingress and egress by vehicular and pedestrian traffic, but not parking, neon, over and across the Common Areas situated on the HEB Parcel from time to time, such easement to be used in common with HEB and its Permittees. CS Marketplace hereby GRANTS, SELLS and CONVEYS unto HM, for the benefit of HEB and its Permittees, a nonexclusive perpetual easement for ingress and egress by vehicular and pedestrian traffic, but not parking, upon, over and across the Common Areas situated on the CS MarketPlace Parcel from time to time, such easement to be used in common with CS MarketPlace and its Permittees. All of the foregoing easements are hereinafter collectively referred to as the "Access Easements:' Additionally, CS MarketPlace hereby GRANTS, CREATES and ESTABLISBES for the benefit of the Owners from time to time of the CS Marketplace Parcel and any portion thereof and then respective Permittees, perpetual, non-exclusive easements for the purposes of ingress, egress and access by vehicular and pedestrian traffic upon, over and across the driveways situated on the CS Marketplace Parcel. 0k, VGsu 062007.00600 12973WM Der Bk Vol Ps 01051,761 OR 9530 104 0105207 OR 9Va[ Ps .` Each Owner agrees that, except as depicted on the Site Plan, no barrier, fence, curb, wall ditch barricade or other structure or obstacle which would unreasonably interfere with, impede, slow or in any way prevent vehicular and pedestrian traffic from passing thereon, will be created or allowed to exist on the Access Easements and/or the Access Drives. The preceding sentence shall not prohibit the reasonable designation and relocation of traffic and pedestrian lanes (subject to the other limitations set forth herein) and the construction of safety traffic control devices, such as speed bumps and stop signs (subject to the other limitations set forth herein). In addition, each Owner may temporarily close or block traffic on its Parcel for the time necessary for the purpose of protecting ownership rights and preventing creation of easements to the public and unrelated third parties (provided, however, that prior to closing off any portion of the Common Area, as herein provided, such Owner shall give ten (10) business days' prior written notice to each other Owner of its intention to do so and shall attempt to coordinate such closing with each other Owner, so that no unreasonable interference in the passage of pedestrians or vehicles shall occur), and may temporarily fence off portions of its Parcel as reasonably required for the purpose of repair, construction and reconstruction, provided that the same does not inhibit the use of the Access Drives. 4.2 Utility Easemeti Each Owner hereby grants and conveys, each to the other, for the benefit of the Parcels, a nonexclusive easement in, to, over, under and across the Common Areas of its respective Parcel for the purposes of installing, operating, maintaining, repairing, replacing, removing and relocating underground storm sewer lines, sanitary sewer pipes, septic systems, water and gas mains, electric power lines, telephone lines, and other underground utility lines (collectively, the "Utility Lines') to serve the facilities located on the Parcels. The location of any Utility Lines as well as any areas upon which construction will be performed shall be subject to the approval of the Owner upon whose Parcel the Utility Lines are to be situated, which approval shall not be unreasonably withheld, conditioned, or delayed, and shall be subject to and limited by the requirements of applicable law. Notwithstanding the foregoing, each Party hereby acknowledges its approval of the location ofthe Shopping Center Utilities (as defined in the Site Development Agreement). The Owners or any designee served by such Utility Lines may operate, maintain, and repair and, if it does not materially interfere with the use of the granting Owner's Parcel, relocate to a location reasonably acceptable to the granting Owner, such Utility Lines (except the Shopping Center Utilities), provided such activities are performed expeditiously, during reasonable hours, and only after ten (10) business days' prior written notice (or in the event of an emergency, such lesser period of notice which is reasonable under the circumstances) to the granting Owner to be affected by such work. Such notice shall be accompanied by a certificate of insurance naming the Owners affected by the work as additional insureds and satisfying the requirements of Article 6 below. The party performing the work shall, at its cost and expense, immediately repair any damage to any improvements resulting from such work. The Owner performing the work with respect to a Utility Line shall indemnify and hold the other Owner and any tenant or other occupant of the other Owner's Parcel harmless from any claims, damages, or losses which nay result from the activities in making such repairs or relocating its facilities. In addition, any Owner whose Parcel is burdened by a Utility Line shall have the right to relocate such Utility Line (except the Shopping Center Utilities) upon such Owner's Parcel provided that such relocation is accomplished without materially interrupting the service provided by such line. ANY OWNER EXERCISING ITS RIGHTS UNDER A UFILITY EASEMENT ON ANOTHER OWNER'S PARCEL SHALL INDEMNIFY, DEFEND AND SAYE HARMLESS THE OTHER OWNER FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, LOSSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES), EXPENSES, CAUSES OF ACTION, SUITS, CLAIMS OR JUDGMENTS ARISING FROM INJURY TO PERSON OR PROPERTY AS A RESULT OF THE EXERCISE OF SUCH RIGHTS UNDER THE UTTLITY EASEMENT, EXCEPT TO THE EXTENT CAUSED BY TEE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER OWNERS C'4 PGSW 062007.00600 1297a9J20 Doc -Bk Vol Pa 01054761 OR 9530 105 722 Pa 01052Z7 OR 9497 43 Grant of Drainage Area Easement. CS Marketplace hereby establishes and creates for the benefit of HEB and all future Owners and Occupants of the BEB Parcel and each of their respective Permittees, a perpetual, non-exclusive drainage.easement (the "Drainage Easement") under, over, across and upon those portions of the CS MarketPlace Parcel Common Area designated for the collection, conveyance, detention and release of surface water from the HEB Parcel into that certain regional detention area located on the CS Marketplace Parcel, including but not limited to those areas designated as "Storm Sewer Line" and "Drainage Area" on Exhibit F attached hereto (collectively, the "Detention Facilities"), and for -the construction, maintenance, repair, replacement and operation of any detention facilities, as necessary for the full use and benefit of the Drainage Easement and Detention Facilities. The Detention Facilities shall at all times provide sufficient off -site detention for the HEB Parcel, in the capacity necessary for the Owner of the HFB Parcel's use of the HEB Parcel for a grocery store, related shopping center development and related uses on the DEB Parcel, Prior to the date hereof, the Drainage Area has been constructed by CS MarketPlace in accordance with applicable law. In accordance with the Site Development Agreement, CS Marketplace shall construct such facilities and/or improvements required in connection with the use of the Detention Facilities by the Shopping Center, including without limitation the Storm Sewer Lines designated on Exhibit F. and thereafter CS Marketplace shall maintain and repair the Detention Facilities (unless and until the City of College Station accepts responsibility for the maintenance thereof) in a safe, sightly and functional condition, and the performance of such maintenance and repair as may be reasonably necessary from time -to -time. In addition, CS Marketplace shall maintain commercially reasonable liability and property insurance covering the Detention Facilities (unless and until the City of College Station accepts responsibility for the maintenance thereof) in an amount of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) per person per occurrence, and $2,000,000.00 in the aggregate, or such greater amount as CS Marketplace may determine to be reasonable. Upon request, CS MarketPlace shall provide the Owners of the HEB Parcel with a copy of a certificate of insurance. Such insurance shall be maintained with reputable insurance companies licensed to do business in the State of Texas with an A. M. Best Co. rating of A or better: Furthermore, unless and until the City of College Station accepts responsibility for the maintenance thereof, CS Marketplace shall cause all ad valorem taxes against the Detention Facilities to be paid each year prior to the date that such taxes would become delinquent. 4.4 Permitted Exceptions. The easements described herein are conveyed and reserved subject to any and all other restrictions, easements, utility lines, or other matters or easements affecting the Shopping Center, except for liens which are expressly subordinated to this Agreement in accordance with Section 10.14 below. 4.5 Petention of Fee Ownership. Each Owner herein retains, reserves and shall continue to enjoy fee ownership, and the dominant right to use the surface and the subsurface of its respective Parcel for any and all purposes, which do not unreasonably interfere with the easements expressly granted by this Agreement Except as prohibited hereby, each Owner expressly reserves the right to modify the Common Areas situated on its Parcel from time to time. 4.6 Performance of Work. In the event an Owner performs work on a Parcel owned by another Owner pursuant to the terms of this Agreement, the following shall apply: (a) Minimal interference. The work shall be performed in such a manner as not to interfere unreasonably with the use or operation of the Parcel upon which the work is being performed, including, without limitation, any material interruption to any utility service to any improvements constructed on such Parcel. 062007.00600 12MMO s i 01054761 OF 9330 106 01052637 8k 9{97-" 'r Any work performed on another Owner's Parcel shall be performed only after ten (10) business days notice to the Owner on whose Parcel such work is to occur (except in an emergency the work may W initiated with reasonable notice) and shall be done (after completion of initial construction of building improvements on the Parcel upon which such work is to be performed) after normal business hours whenever possible and shall otherwise be performed in such a manner as to cause as little disturbance in the use of the affected Owner's Parcel as is practicable under the circumstances. Any Owner performing or causing to be performed maintenance or repair work agrees to promptly pay all costs and expenses associated therewith, to diligently complete such work as quickly as possible and to promptly clean the affected portion of the Common Area. (b) Restoration. Upon the completion of any work, the Parcel upon which the work was performed shall be restored by the Owner performing the work, at such Owner's cost and expense, to a condition equal to or better than, that which existed prior to the work, except to the extent that such Parcel has been maintained or improved as a result of the work. (c) Permits. All necessary licenses and permits required for the work shall be obtained prior to the commencement thereof, and all work shall be done and all improvements constructed in a good and workmanlike manner. All of the work shall be completed free and clear of all liens of contractors, subcontractors, laborers, and materialmen and all other liens, In the event any such lien or claim of lien is levied, the Owner of the Parcel for whom the work was performed shall, within thirty (30) days following receipt of written notice from the Party against whose Parcel such lien or claim of lien was levied, bond or discharge such Gen or claim of lien. (d) Compliance with Applicable Law. All work shall be performed and all improvements constructed in accordance with all laws, ordinances, codes, nrles, and regulations of all governmental authorities having jurisdiction over such work or the affected Parcel. (e) Indemnity. ANY OWNER PERFORMING CONSTRUCTION ON ANOTHER OWNER'S PARCEL SHALL INDMWy, DEFEND AND SAVE HARMLESS THE OTHER OWNER FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, LOSSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES), EXPENSES, CAUSES OF ACTION, SUITS, CLAIMS OR JUDGMENTS ARISING FROM INJURY TO PERSON OR PROPERTY AS A RESULT OF THE PERFORMANCE OF SUCH CONSTRUCTION, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL, MISCONDUCT OF THE OTHER OWNERS. ARTICLE 5 Maintenance and Operation of the Shopping Center 5.1 Maintenance and Operation. (a) Common Areas. Each Owner shall maintain or cause to be maintained the Common Areas on its own Parcel in good condition and repair and clean and free from refuse and rubbish. Such maintenance shall include, but not be limited to, the following: regular and timely removal of all litter, garbage, trash and waste; regular lawn mowiug; tree, shrub and plant pruning and trimming; watering of landscaped areas; weed control; pest control; maintaining exterior lighting and mechanical facilities in good working order, keeping parking areas, walks, driveways and roads clean and in good repair, striping of all parking and driveway areas; and the repairing and repainting of the exterior improvements visible to neighboring properties and/or public view. Any landscaped areas shall be mowed and otherwise tended to by the Owner thereof so as to be reasonably weed -free. The standard for such maintenance shall be that which would maintain the Parcel in a manner and quality equal to at least 062007.00600 12973MO Doc Bk Vol Ps ± 01054761 OR 9530 107 that maintained by the owners of first-class facilities of the same type in the College Station, Texas area (the "market area"). Each Owner shall maintain, repair, and replace all improved portions of the Common Areas located on its respective Parcel so as to keep such areas at all times in a safe, sightly, good, and functional condition to standards of similar community shopping centers in the market area. Following construction by CS Marketplace of the Access Drives, in accordance with the Site Development Agreement, CS Marketplace shall maintain the Access Drives in a safe, sightly and functional condition, including but not limited to the maintenance and repair of the Access Drives in a first class condition, and the performance of such maintenance and repair as may be reasonably necessary from time -to -time (collectively, the "Maintenance Items"). In addition, CS Marketplace shall maintain commercially reasonable liability and property insurance covering the Access Drives in an amount of ONE MILLION AND NO1100 DOLLARS ($1,000,000.00) per person per occurrence, and $2,000,000.00 in the aggregate, or such greater amount as CS Marketplace may determine to be reasonable. Upon request, CS Marketplace shall provide the Owners and Occupants of the IIEB Parcel with a copy of a certificate of insurance (which shall name HEB as an additional insured), which certificate shall provide that the policy will not be canceled without at least thirty (30) days prior notice to such Owners and Occupants. Such insurance shall be maintained with reputable insurance companies licensed to do business in the State of Texas with an A. M. Best Co. rating of A or better. The Maintenance Items shall include the cost of the foregoing liability insurance policies. CS Marketplace shall obtain HEB's prior written approval of the annual budget for the Maintenance Items in advance for each calendar year (the budget, as approved by BEB and CS Marketplace, being referred to herein as the "Approved Budget") and CS Marketplace shall have the right to collect an administrative fee to be evidenced on the annual budget, not to exceed five percent (5%) of the cost of the Maintenance Items, excluding insurance premiums. Following construction of the Access Drives, not more than once per calendar quarter, each Owner shall reimburse CS Marketplace for its pro-rata share (as hereafter defined) of the actual, documented out-of-pocket costs incurred by CS Marketplace with respect to the Maintenance Items (but only to the extent, and in accordance with, the Approved Budget for such calendar year), within thirty (30) days following written request therefor; provided that reimbursements for the cost to carry liability insurance as required above shall be billed annually. As used in this Section 5.1(a), "pro-rata share" shall mean the ratio, expressed as a percentage, that the land area of an Owner's Parcel bears to the total land area of all Parcels (excluding Area D as shown on the Site Plan) permitted to use the Access Drives. Furthermore, CS Marketplace shall cause all ad valorem taxes against the Access Drives owned by CS Marketplace to be paid each year prior to the date that such taxes would become delinquent and thereafter, CS Marketplace shall provide HEB paid invoices from the applicable tax authorities. Notwithstanding the foregoing, with respect to the portion of Private Drive C, as shown on page I of the Site Plan, which is owned by IIEB, HEB shall cause all ad valorem taxes against such portion of Private Drive C to be paid each year prior to the date that such taxes would become delinquent. (b) Utility Lines. Each Owner shall service, maintain, repair, replace, and pay the cost of any fees or charges in connection with the Utility Lines located on its Parcel, including but not limited to the Shopping Center Utilities, to the extent that such Utility Lines service the improvements on that Parcel or service the Shopping Center as a whole if such services are not provided. To the extent that any Utility Line, including but not limited to the Shopping Center Utilities, exclusively servicing any Parcel crosses another Owner's Parcel, such Utility Line shall be maintained by the party served by the Utility Line, subject to the provisions of this Agreement. The maintenance, repairs, and replacement of any portion of any Utility Lines serving more than one Parcel, including but not limited to the Shopping Center Utilities, shall be performed by the Owner of the Parcel crossed by the Utility Line, but the cost thereof shall be shared on an equitable basis based upon the relative square footage of the improvements located on the affected Parcels served by the Utility Line. 10 062W.006sa 12973940 , Oor sk Vol Ps 0105M1 OF. 9530 109 r (c) Compliance with Applicable Law. Each Owner shall cause the Common Areas and all buildings and 'improvements located on its Parcel to comply with all applicable requirements of law and governmental regulation applicable thereto. (d) Unimproved Portions of Parcels. Until such time as buildings or improvements are constructed on any Parcel, each Owner shall take or cause to be taken such measures as may be necessary to control weeds, blowing dirt and sand, and similar matters, with respect to the undeveloped area located on its Parcel. Each Owner shall have the right to build or otherwise improve any unimproved portion of their Parcel subject to the applicable provisions of this Agreement. (e) Building Maintenance. Each Owner shall maintain (or use commercially reasonable efforts to cause to be maintained by tenants, to the extent required under individual tenant leases), in good order and repair, consistent in manner and appearance with similar properties in the market area, all buildings (including, but not limited to, all loading docks, truck facilities, compactor areas, and permitted building signs) located on its Parcel, as well as its identification panels, if any, on any pylon signs. ARTICLE 6 Insurance and Indent 6.1 Insurance. Bach Owner shall maintain, or cause to be maintained, commercial general liability insurance insuring against claims on account of lost life, bodily injury or property damage that may arise from, or be occasioned by the condition, use or occupancy of the Common Areas situated upon its respective Parcel, or caused by such Owner, or caused by those persons for whose acts and omissions such Owner is legally liable. Each respective Owner shall obtain an insurance policy, according to the provisions hereof, covering the Common Area on its Parcel from a reputable insurance company or companies qualified to do business in the State of Texas and that is rated by Best's Insurance Reports not less than "A"; and each such policy of insurance shall have limits for loss of life or bodily injury in amounts of not less than $3,000,000.00 for each occurrence. The limits of such policies shall be reviewed by the parties and approved as to sufficiency at least every five (5) years. Such insurance may be earned under a "blanket" policy or "blanket" policies covering other properties of each respective party, and, provided that an Owner maintains a tangible net worth in excess of $100,000,000, may be subject to such self -insured retentions as such Owner may desire. Each Owner shall, upon written request from the other party, furnish to the requesting Owner one or more certificates of insurance evidencing the existence of the insurance required above. If a Party performs any construction on any other Party's Parcel, including without limitation the construction of the Site Work or a Utility Line or other related improvements upon another Owner's Parcel as permitted hereby, then the Party performing such construction shall obtain or require its contractor to obtain and thereafter maintain so long as such construction activity is occurring, at least the minimum insurance coverages set forth below: (i) Workers'Compensation — statutory limits; (ii) Employers Liability -$1,000,000.00; (iii) Commercial General and Comprehensive Auto Liability as follows: (a) Bodily Injury - $2,000,000.00 per occurrence; 11 062007.00600 129734v20 01054761 eR 9.530 149 01052637 0R 9491 '7t±—t (b) Property Damage - $2,000,000.00 per occurrence; (c) Independent Contractors Liability or Owner's Protective Liability; same coverage as set forth in (a) and (b) above; (d) "XCU" hazard Endorsement, if applicable; (e) "Broad Form" Property Damage Endorsement; (f) "Personal Injury" Endorsement; (g) "Blanket Contractual Liability" Endorsement; (iv) Builders Risk Insurance for all risk of physical loss during .the term of a construction contract until work is complete, and with appropriate coverage for (a) the cost of clearing all damaged improvements from the Shopping Center and (b) the full insurable value of improvements constructed and materials stored at the Shopping Center. The Owner of the burdened Parcel shall be an additional named insured and such insurance shall provide that the same shall not be canceled or materially reduced without at least thirty (30) days prior written notice to the additionally named insureds. If such insurance is canceled or expires then the constructing Owner shall immediately stop all work on or use of another Owner's Parcel until either the required insurance is reinstated or replacement insurance obtained. 6.2 Indemnity, EACH OWNER SHALL INDEMNIFY, DEFEND AND SAVE HARMLESS THE OTHER OWNERS FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, LOSSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES), EXPENSES, CAUSES OF ACTION, SUITS, CLAIMS OR JUDGMENTS ARISING FROM INJURY TO PERSON OR PROPERTY AND OCCURRING ON SUCH OWNER'S RESPECTIVE COMMON AREA, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WR LFUL MISCONDUCT OF THE OTHER OWNERS. ARTICLE 7 Resbictive Covenants 7.1 Groeer y Use Restrictions. No portion of the CS Marketplace Parcel will be leased, occupied or used, directly or indirectly, for the purpose of or in connection with the conduct of a food store business or food department, or for the storage, display, operation or sale of (i) edible groceries, including but not limited to meats, poultry, seafood, produce, frozen foods, dairy products, bakery products, wine, malt, alcoholic or nonalcoholic beverages, and any other items of food and beverage, (ii) health and beauty products, including but not limited to hair products and supplies, cosmetics, skin and body products, vitamins, herbs, and nutritional supplements, (iii) pet food and supplies, (iv) greeting cards, gift wrapping supplies, and parry products, (v) baby apparel and supplies, and furniture, (vi) tobacco products, (vii) lawn and garden products, barbeque grills and related equipment and supplies, (viii) fresh flowers, plants, floral supplies and products, (ix) non-prescription pharmaceuticals, (x) cellular phones(s), cellular phone accessories, and/or cellular phone services, (xi) prescription pharmaceuticals or other products which are required by law to be dispensed by a registered pharmacist, (xii) gasoline or 12 062007.004500 1297e9r20 DoC 8k Vol Ps 01054761 OR 9530 lie Vol Fs 91052637 OR k.3-„_, other fuel for vehicles, (xiii) check cashing, payday loan(s) or paycheck advance(s), or any of them (the items listed in (i) through (x) above being collectively referred to as the "Restricted Items'); provided, however, the following uses shall be permitted as exceptions to the foregoing restriction: (a) ' the "Incidental Sale" (as defined below) of Restricted Items (except fresh meat, poultry, seafood and produce) by a store whose principal business is not a food store; the term "Incidental Sale" of Restricted Items being defined to mean that the sale of (i) any one of the Restricted Items shall not exceed ten percent (100K) of gross sales by such store, or (H) more than one of the Restricted Items shall not exceed thirty percent (30%) of gross sales by such store in the aggregate; (b) the operation of one (1) liquor store on either Areas B or D, provided that (i) the total Floor Area of any such store shall not exceed 4,500 square feet, and (h) the total Floor Area devoted to the sale and/or display of wine or wine products (x) if such store is located on Area B, shall not exceed seven hundred (700) combined square feet (inclusive of aisle space), or (y) if such store is located on Area D (comprised of Lots DI, D2, D3, D4, D5, D6, D7, D8 and D9) depicted on the Site Plan, shall not exceed one thousand five hundred (1,500) combined square feet (inclusive of aisle space); (c) one or more restaurant(s) within the CS Marketplace Parcel; provided, however, that (i) with respect to Area A (comprised of Lots Al, A2, A3 and A4) depicted on the Site PIan, subject to the No Restaurant Area situated thereon, (x) no individual restaurant may exceed 2,500 square feet of Floor Area, except for fast-food restaurants (such as those currently operated as McDonald's, Taco Bell or Wendy's) located on Lots A2 and A3 which shall not exceed 5,000 square feet of Floor Area in aggregate on either Lot, (y) the aggregate Floor Area of all restaurants situated thereon shall not exceed 10,0.00 square feet, and (z) no restaurant may be located in the No Restaurant Area except for one (1) sandwich shop (such as that currently operated by "Subway" or "Quizno's') on Lot A4 not exceeding 2,500 square feet of Floor Area, (ii) with respect to Area C (comprised of Lots Cl, C2, C3, C4 and CS) depicted on the Site Plan, no individual restaurant may exceed 4,000 square feet of Floor Area except for one (1) casual, family style sit-down restaurant (such as that currently operated by "Chili's") on Lot Cl which shall not exceed 7,000 square feet of Floor Area (except that in lieu of such casual, family style sit- down restaurant, the operation of one (1) Logan's Roadhouse on Lot Cl shall be permitted, provided such restaurant shall not exceed 7,500 square feet of Floor Area) (and, if such casual, family style sit-down restaurant or Logan's Roadhouse exceeding 4,000 square feet of Floor Area is operated on Lot Cl, then no restaurant may be located on Lot C2), and the aggregate Floor Area of all restaurants situated on Area C shall not exceed 15,000 square feet, and (iii) with respect to Area B (comprised of Lots Bl, B2, B3, B4 and B5) depicted on the Site PIan, the aggregate Floor Area of all restaurants situated thereon shall not exceed 35,000 square feet; provided that no more than four (4) restaurants exceeding 5,000 square feet of Floor Area shall be permitted on Area B; Moreover, no restaurants permitted above shall exceed the following limitations on the percentage of gross sales from such operations derived from the sale of alcoholic beverages: (i) twenty percent (20%) - Areas A and C, except that if one (1) casual, family style sit-down restaurant shall be operated on Lot Cl, such as that currently operated by "Chili's" as permitted above, the percentage of gross sales from such operations on Lot Cl derived from the sale of alcoholic beverages shall not exceed thirty percent (30%); (ii) thirty percent (30%) - Area B; and (iii) forty percent (40%) - Area D; (d) the operation of one (1) diet or weight control specialty store such as that currently operated by. "WeightWatchers" on either Areas A or C, provided that any such diet or weight control store or facility shall not exceed 3,000 square feet of Floor Area, and the operation of one (1) diet or weight control specialty store on each of Areas B and D; 13 062007.00600 12973940 Doc Bit Vol Ps i 01054761 OR 9530 111 01052637 OR W7 P`P9 (e) the operation of one (1) gym or fitness center on each of Areas A, B and D (provided that no such store shall be located on Lot Al and any such store located on Area A shall not exceed 5,000 square feet of Floor Area); (t) the sale of baby apparel, furniture and/or supplies by (i) stores such as those currently operated as'Beall's", `Marshall's", or "Kohl's" whose primary business is not the sale of baby apparel, furniture or supplies, on each of Areas B and D; (ii) one (1) specialty baby store not exceeding 3,000 square feet of Floor Area on either Areas A or C and either Areas B or D; and (iii) one (1) specialty baby store such as that currently operated by `Babies R Us" on Area D not exceeding 45,000 square feet of Floor Area ; (g) the sale of lawn and garden products, barbeque grills and related equipment and supplies by a hardware store such as that currently operated by "Ace Hardware" or "Tm Value" or by a home improvement discount store such as that currently operated by "Home Depot" or `Lowes", provided that the total Floor Area devoted to the sale or display of barbeque grills and related equipment and supplies shall not exceed five percent (5%) of the Floor Area of such store's premises and further provided that no such store may be located closer than 300 feet from the HBB Parcel; (h) the operation of one (1) toy store on each of Areas A, B, C, and D, provided that any such toy store shall not exceed 3,000 square feet of Floor Area, and the operation of one (1) toy store on Area D such as that currently operated by "Toy R Us" not exceeding 55,000 square feet of Floor Area; (i) the operation of one (1) specialty book store such as that currently operated by "Barnes & Noble", "Books A Million" or "Borders" on each of Areas B or D, and the operation of one (1) specialty book store on Area C, provided that any such store shall not exceed 3,000 square feet of Floor Area; (j) the operation of one (1) specialty tobacco store selling tobacco and related products, such as that currently operated by "Humidor" on either Areas A or C (but not a store whose principal business is the discount sale of tobacco products or any such store with a drive thru facility on either Areas A or C), provided that any such store shall not exceed 3,000 square feet of Floor Area; and the operation of one (1) specialty tobacco store on either Areas B or D, but not a store whose principal business is the discount sale of tobacco products; (k) the operation of one (1) of each of the following stores on each of Areas A, B, C, and D: a juice bar such as that currently operated by "Jambs Juice", a smoothie store such as that currently operated by "Smoothie King", a kolache store, an ice crearn store, a frozen yogurt store, a donut store and/or a candy store, provided that the total Floor Area of each such store on each of Areas A and C shall not exceed 2,000 square feet; (1) the operation of one (1) specialty coffee store such as that currently operated by "Starbucks" on each of Areas A and C, provided that such specialty coffee store does not have a drive through facility if located on Area A, and further provided that (i) such specialty coffee store, if located on Area C and situated not closer than 700 feet from the entrance of the HEB Building (as indicated on the Site Plan), may include a drive through facility so long as it maintains a minimum of four (4) queuing spaces (and otherwise complies with the Drive -Through Facility Queuing Requirements of the City of College Station's Unified Development Code), and (ii) the total Floor Area of such specialty coffee store shall not exceed 3,000 square feet of Floor Area; and the operation of up to two (2) specialty coffee stores on each of Areas B and D; 14 062007.0%00 129739v20 Doc 0k Vol Fs 01054761 OR 9530 112 k 7 Vol F256010 (m) the operation of one (1) cosmetic or beauty supply store such as that currently operated by "Bath & Body Works," "'1Le Body Shop," "Sally Beauty" or "Merle Norman" on either Areas A or C, provided that any such store shall not exceed 3,000 square feet of Floor Area, and the operation of one (1) cosmetic or beauty supply store on each of Areas B and D; (n) the operation of one (1) craft or hobby store on either Areas A or C, provided that any such store shall not exceed 3,000 square feet of Floor Area, and the operation of one (1) craft or hobby store such as that currently operated by "Michaels," "7oAnn" or "Hobby Lobby" on each of Areas Band D; (o) the operation of one (1) learning center such as that currently operated by "Sylvan ' "Huntington" or "Kumoe on either Areas A or C; provided that the Floor Area of any such store does not exceed 3,000 square feet, and the operation of one (1) such learning center on each of Areas B and D; (p) the operation of one (1) specialty card store such as that currently operated by "Hallmark' on Area C; provided that the Floor Area of any such store does not exceed 3,000 square feet, and the operation of one (1) specialty card store on either Areas B or D; (q) the operation of one (1) retail flower store on Area C, provided that the Floor Area of any such store does not exceed 3,000 square feet, and the operation of one (1) retail flower store on either Areas B or. D; (r) the operation of one (1) party supply store on either Areas B or C, provided that the Floor Area of any such store does not exceed 3,000 square feet, and the operation of one (1) party supply store such as that currently operated by "Party City" on Area D; (a) the operation of one (1) retail pet store on either Areas B or C not exceeding 3,000 square feet of Floor Area, and the operation of one (1) retail pet store such as that currently operated by "PetSmart" or "Petco" on Area D; (t) the operation of one (1) cellular phone store on each of Areas A and C situated at least 300 feet from the front entrance of the HEB Building (provided, however, that a cellular store such as that currently operated by "Sprint/Nextel", "Cricket" or "Pocket' shall only be permitted if such store is situated at least 500 feet from the HEB Parcel), and the operation of up to two (2) cellular phone stores in the aggregate on Arm B and D; (u) the operation of one (1) check cashing, payday loan or paycheck advance store on each of Area C and either Areas B or D, provided that the Floor Area of any such store does not exceed 2,000 square feet; (v) the operation of one (1) vitamin and supplement store on either Areas A or C, such as that currently operated by "GNC" or "The Vitamin Shoppe", provided that the Floor Area of any such store does not exceed 3,000 square feet, and the operation of one (1) vitamin and supplement store on each of Areas B and D; (w) the operation of one (1) consumer electronics and supplies store such as that currently operated by "Radio Shack" on Area C, provided that the Floor Area of any such store does not exceed 5,000 square feet, and the operation of (A) one (1) consumer electronics store such as that currently operated by "Best Buy" on either Areas B or D and (B) one (1) consumer electronics and 15 06 007.00600 129r9r20 Doc Pk Vol Fs ? 01054761 OR 9530 113 g1n52637 p° Vol �s .I6 supplies store such as that currently operated by "Radio Shack" on each of Areas B or D, subject to the limitations applicable thereto set forth below; (x) the operation of one (1) farm and ranch supply store such as that currently operated by 'Tractor Supply" on Area C, provided that the Floor Area of any such store does not exceed 3,000 square feet, and the operation of one (1) farm and ranch supply store on either Areas B or D; and (y) the operation of a pharmacy situated within, and operated in connection with, a hospital permitted hereunder, provided that such hospital pharmacy shall not be (i) a freestanding pharmacy, (ii) operated by Walgreen's, Eckerd's, CVS or any other company operating ten (10) or more pharmacies, and/or (iii) situated closer than 350 feet from the BEB Building. The stores permitted under subsections (b) through (v) above shall not have a common door or be operated as a common enterprise, but the foregoing shall not preclude the sale of items permitted in one of such subsections in a store permitted under a different subsection, provided that the square foot area limitations for such store, if any, as set forth above shall not thereby be increased due to any such sales. Furthermore, any restaurant uses permitted hereby, except for a takeout or delivery pizza store, or a sandwich shop (such as that currently operated by "Subway" or "Quizno's') must have as their principal business the We of prepared food for on -premises consumption; provided that the Incidental Sale of prepared food for off -premises consumption (as defined in this section) and the operation of a fast-food restaurant such as that currently operated by "McDonald's," "Taco Bell" or "Wendy's" on a Pad shall also be permitted subject to the distance and square footage limitations for restaurants set forth above; but it is expressly understood that the operation of a meals -to -go business such as that currently operated by "Eatzi's," ..Luby's Meals -to -Go," and/or "Dean and Deluca's" shall not be permitted (provided however that (i) two (2) take-out or to -go operations located within a restaurant, such as that currently operated by "Chili's to Go" and "Luby's to Go" shall be permitted on Area D, and (ii) a pre -packaged meals -to -go business such as that currently operated by "Fit Foods" shall be permitted on Area D). For purposes of this Section 7.1- (i) "Incidental Sale" shall mean ten percent (100/6) or less of gross sales from such premises attributable to the sale of any one of the items set forth in Section 7.1(a) above, and (ii) "Incidental Sale of prepared food for off -premises consumption!' shall mean thirty percent (30%) or less of annual gross revenues from such premises attributable to the sale of such prepared food. In addition to the foregoing restrictions, no store on the CS Marketplace Parcel occupying more than 20,000 square feet of Floor Area and primarily engaged in the sale of office products and supplies (such as that currently operated by "Office Depot" or "Office Max"), and no store on the CS Marketplace Parcel occupying more than 25,000 square feet of Floor Area and primarily engaged in the sale of consumer electronics equipment and supplies (such as that currently operated by "Circuit City" or "Best Buy") may be situated on either Areas A or C. Furthermore, in no event shall the CS Marketplace Parcel be leased, occupied or used, directly or indirectly, for the operation of a car wash. In the event of any conflict with Floor Area(s) limitations specified in this Section 7.1 and the Maximum Floor Areas) set forth in the Building Restriction Plan, this Section 7.1 shall control with respect to the specific uses referenced herein. 7.2 Prohibited Office, Other Uses. No Owner will permit the use of any portion of the Shopping Center for any purpose other than retail, office and service establishments common to first-class shopping centers of comparable size located in the College Station, Texas area. Notwithstanding the foregoing, each party agrees that office use shall not exceed fifteen percent (159/6) of the buildings constructed on its respective Parcel (other than on each of Areas B and D, as permitted hereunder). 16 062007.00600 12973940 Roc &k Vol Ps h 01051761 OR 9530 114 0195E6,. Bk Vol 2i7 Service establishments shall include, but not be limited to, the business of financial institutions, investment, real estate, and insurance offices, medical, dental, licensed massage and chiropractic offices, cleaners, barber, beauty, nail and tanning shops, hair cutting salons, shoe repair shops, optical stores and optician offices, and travel agencies. The following uses will not be. made, conducted or permitted on or with respect to all or any part of the Shopping Center (collectively, the "Probibfted Uses"): any nuisance; any use which violates laws or requirements of governmental authorities having jurisdiction over the Shopping Center; the primary use of any building as a warehouse; an assembly hall; hotel (except that one (1) hotel shall be permitted on Area D, provided that such hotel is either (x) situated at least 700 feet from the front entrance of the HEB Building and is operated in connection with a development on Area D consistent with one of the approved Development Plans or (y) located west of the Demarcation Line, as shown on the Site Plan, provided, however, that if such proposed hotel operation on Area D is not consistent with an approved Development Plan or located west of the Demarcation Line, then the conceptual site plan for such operation shall be subject to HEB's prior written approval); distillation operation, a telecommunications tower, mobile home or trailer park; the drilling for and/or removal of subsurface substances; kennel or veterinary clinic where animals are kept overnight (except on each of Areas B and D); school (except that the foregoing will not prohibit instructional classes on the HEB Parcel or.one (1) school on Area D so long as such school does not affect HEB's ability to sell or display alcohol, including but not limited to beer and wine, and is either (x) situated at least 700 feet from the front entrance of the HEB Building and is operated in connection with a development on Area D consistent with one of the approved Development Plans or (y) located west of the Demarcation Line, as shown on the Site Plan, provided, however, that if such proposed school operation on Area D is not consistent with an approved Development Plan or located west of the Demarcation Line, then the conceptual site plan for such operation shall be subject to HEB's prior written approval); church; assembly hall; museum; pawn shop; movie theatre (except that one (1) movie theater shall be permitted on Area D, provided that such theater is either (x) situated at least 700 feet from the front entrance of the HEB Building and is operated in connection with a development on Area D consistent with one of the approved Development Plans or (y) located west of the Demarcation Line, as shown on the Site Plan, provided, however, that if such proposed theater operation on Area D is not consistent with an approved Development Plan or located west of the Demarcation Line, then the conceptual site plan for such operation shall be subject to BU's prior written approval); game room (unless operated in conjunction with a restaurant on either Areas B or D, such as that currently operated by "Chuck E Cheese" or "Dave and Buster's," to the extent permitted hereunder) or amusement park; skating rink; pool hall or billiard parlor (other than one (1) family pool hall such as that currently operated by "Slick Willie's" on either Areas B or D, to the extent permitted hereunder); bowling alley (except for one (1) bowling alley on Area D, provided that such bowling alley is situated at least 700 feet from the front entrance of the MB Building); dancehall; saloon, cocktail lounge, nightclub or bar (except for one (1) nightclub or bar on Area D, to the extent permitted hereunder, provided that such nightclub or bar is situated at least 700 feet from the front entrance of the HEB Building); mortuary or funeral home; automobile body and repair shop (except for one (1) first class national or regional automobile body and repair shop on each of Areas B and D); flea market; assisted - living facility (except on Area D, provided that such facility is either (x) situated at least 700 feet from the front entrance of the HEB Building and is operated in connection with a development on Area D consistent with one of the approved Development Plans or (y) located west of the Demarcation Line, as shown on the Site Plan, provided, however, that if such proposed assisted•living facility operation on Area D is not consistent with an approved Development Plan or located west of the Demarcation Line, then the conceptual site plan for such operation shall be subject to M's prior written approval); or adult book store or store selling sexually explicit material. 7.3 Bun with the Land. These covenants shall nw with the land hereby restricted throughout the Term. The covenants set forth in Section 7.1 shall inure to the benefit of HEB, and HEB shall have the 17 06207.00MO 129Tl9v20 Doc ek Vol Ni 01054761 OR 9530 US 0z Vol N 01052637 0 97 218 sole right to enforce, release or waive such covenants. In no event shall the restrictive covenants affecting the CS Marketplace Parcel set forth in Lion 7.1 be binding upon REB in connection with HEB's use of the CS Marketplace Parcel as permitted hereunder, or in the event that HEB ever becomes the Owner or Occupant of all or any part of the CS Marketplace Parcel. The covenants set forth in Section 7.2 shall inure to the benefit o£HEB and CS Marketplace, and shall not be waived or released without the consent of each of HEB and CS Marketplace. ARTICLE 8 Remedies 8.1 Self Help and Other Remedies. If any Party defaults in the performance of its obligations hereunder and the default is not cured within ten (10) days following delivery of written notice to such defaulting party or such additional time not as may be reasonably necessary under the circurnstances, not to exceed sixty (60) days then the non -defaulting Party shall have the right to (i) to perform such obligation on behalf of the defaulting Party, in which event such defaulting Party shall reimburse such non -defaulting party on demand for all amounts expended by the non -defaulting party on behalf of the defaulting Party, together with interest thereon at the lesser of twelve portent (12%) per annum ("Default Rate"), or the maximum amount permitted by law from the date the amounts are expended until the date repaid; and/or (ii) exercise any other rights or remedies available to the non -defaulting Party either at law or in equity. Each defaulting Party agrees to execute any applications for permits or other documents required by the non -defaulting Party in order to perform the obligations of the defaulting Party. The Parties hereby acknowledge and agree that in the event a Party fails to perform any of its construction and/or maintenance obligations hereunder, the non- de£aulting Party is hereby granted a temporary construction, access, and/or maintenance easement, as applicable, upon the Common Areas of the defaulting Party's Parcel to perform such maintenance work on behalf of the defaulting Party. 8.2 Inlnnctive Relief. In the event of a breach by any party herein of any obligation of such party under this Agreement, the nondefaulling Party shall be entitled to injunctive relief mandating compliance herewith, and shall be entitled to obtain a decree specifically enforcing the performance of the obligations created hereunder. The undersigned hereby acknowledge and stipulate the inadequacy of legal remedies and irreparable harm which would be caused by the breach of this Agreemcnt, and such non - defaulting party shall be entitled to relief by any and all other available legal and equitable remedies from the consequences of such breach. Any costs and expenses of any such proceeding, including reasonable attorneys fees, shall be paid by the defaulting party. 8.3 Non -Waiver. No delay or omission of any party hereto in the exercise of any rights created hereunder shall impair such right, or be construed to be a waiver hereot and every such right may be exercised at any time during the continuance of an event of default hereunder. A waiver by any party hereto of a breach of, or default in, any of the temps and conditions ofthis Agreement by the other party shall not be construed to be a waiver of any subsequent breach thereof or of any other provision of this Agreement Except as otherwise specifically provided in this Agreement, no remedy provided in this Agreement shall be exclusive, but shall be cumulative with all other remedies provided for in this Agreement, and all other remedies at law or in equity which are available to the parties hereto. ARTICLE 9 Notices All notices, demands, statements, and requests (collectively the "Notice") required or permitted to be given under this Agreement must be in writing and shall be deemed to have been properly given or served as of the date hereinafter specified: (i) on the date of personal service upon the Party to whom the 18 062007.00600 IW73h20 91054761 OR 9S3u 116 0105_ 2' pR 94 1 Fs notice is addressed or if such Parry is not available the date such notice is left at the address of the Party to who it is directed, (A) on the date the notice is postmarked by the United States Post Office, provided it is sent prepaid, registered or certified mail, return receipt request, (iii) on the date the notice is delivered by a courier services (including Federal Express, Express Mail, Lone Star or similar operation) to the address of the Party to whom it is directed, provided it is sent prepaid, return receipt requested, and (iv) on the date the notice is received if sent by facsimile or electronic delivery. The address of the signatories to this Agreement is set forth below: If to HEB: HEB Grocery Company, LP 646 South Main Avenue San Antonio, Texas 78204 Attn: Todd A. Piland Facsimile: (210)938-7788 HEB Grocery Company, LP 4301 Windfem Houston, Texas 77041-8915 Attn: Richard Golden Facsimile: (713) 329-3948 With a copy to: Drenner & Golden Stuart WoK LLP 300 Convent Street, Suite 2600 San Antonio, Texas 78205 Attw Stephen L. Golden Fax (210) 745-3737 If to CS MarketPlace: College Station MarketPlace, L.P. 520 Post Oak Blvd., Suite 850 Houston, TX 77027 Attn: Andy Weiner Fax: (713) 623-0178 Crowley Development Corporation 204 North. Highland Marfa, Texas 79843 Attention: Timothy J. Crowley Fax: (713) 651-1775 With copy to: Bradley F. Schlosser Schlosser Development Corporation 601 North Lamar, Suite 301 Austin, Texas 78703 Pax: (S12) 472-5774 ARTICLE 10 General Provisions 10.1 Bindin¢ Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective Permittees, as well as the successors and assigns of such Persons. The easements and restrictive covenants shall be appurtenant to and for the benefit of all the 19 062007.006W 129739V20 Doc Ric Vol Pa i Vol Ps 01054761 OF 9530 117 01052637 OF 220 Owners and shall run with the land for the periods set forth herein, This Agreement shall be construed in accordance with the laws of the State of Texas and all obligations hereunder are performable in City of College Station, Brazos County, Texas. 10.2 Partial Invalidity. If any tens, covenant or condition of this Agreement or the application of it to any Person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement or the application of such term, covenant or condition to Persons or circumstances, other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each tens, covenant or condition of this Agreement shall be valid and shall be enforced to the extent permitted by law. 10.3 Cuotions. The captions and headings in this Agreement are for reference only and shall not be deemed to define or limit the scope or intent of any of the terns, covenants or conditions contained herein, 10.4 Gender, In construing the provisions of this Agreement and whenever the context so requires, the use of a gender shall include all other genders, the use of the singular shall include the plural, and the use ofthe plural shall include the singular, 10.5 itelationshin of the Parties. Nothing contained herein shall be construed to make the parties hereto partners or joint venturers, or render any of such parties liable for the debts or obligations of the other party hereto. 10.6 Amendment This Agreement may be canceled, changed, modified or amended, in whole or in part, only by the written and recorded agreement of the Owners of seventy-five percent (75%) of the land area of the I EB Parcel and seventy-five percent (75%) of the land area of the CS MarketPlace Parcel (excluding, however, any portion of Area D west of the Demarcation Line as shown on the Site Plan); provided that (a) only IIEB, as the original signatory hereto, shall have the right to waive, modify or amend the restrictions set forth in Section 7.1, regardless of whether or not IiEB has an ownership or leasehold interest in the Shopping Center, and it may do so without the consent of any other Owner, Occupant or otherwise; provided however that the foregoing shall not permit DEB to impose additional use restrictions on the CS MarketPlace Parcel, expand the scope of the use restrictions on the CS MarketPlace Parcel, or increase or impose additional obligations on the CS Marketplace Parcel, in any of such events without the written and recorded agreement of the Owners of seventy-five percent (75%) of the land area of the CS MarketPlace Parcel, excluding Area D unless such Owners shall be required in accordance with this Section 10.6, and (b) if such instrument imposes additional obligations or restrictions on an Owner of a Parcel within the portion of Area D west of the Demarcation Line, as shown on the Site Plan, the Owner(s) of the Parcel within Area D so affected [but no other Owners of Parcels within Area D west of the Demarcation Line] most join in such instrument. Except as expressly provided in this section, in no event shall any amendment of this Agreement ever require the consent or joinder of any one or more of the agents, patrons, customers, employees, tenants, licensees or invitees of the Shopping Center. 10.7 No Dedication, Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Shopping Center to the general public or for the general public or for any public purpose whatsoever, if being the intention that this Agreement shall be strictly limited to and for the purposes herein expressed. This Agreement is not intended to create, nor shall it be in any way interpreted or construed to create, any third party beneficiary rights in any person not specifically benefited by the teams and provisions hereof. Nothing contained in this Agreement shall prohibit either Party hereto from dedicating all or any part of the easement areas owned by that Party to an appropriate governmental entity, the effect of which would create a public street on the easement area so dedicated, with maintenance and repair responsibilities transferring to the County of Brazos, or other governmental entity; provided, however, that any such dedication shall not be permitted if the effect of a dedication would be to materially alter, modify or restrict the intended access easements contemplated under this Agreement 20 062007,00600 12973SN20 Doc U, Vol Fs . k Vol Re 01054761 OR 9530 Ila 01052637 Lk 221 10.8 Counterparts. This Agreement may be executed in any number of counterparts and each such counterpart hereof shall be deemed to be an original instrument, but all of such counterparts shall constitute but one Agreement. 10.9 Attorneys Fees. In the event any legal action or proceeding for the enforcement of any right or obligations herein contained is commenced, the prevailing party in such action or proceeding shall be entitled to recover its costs and reasonable attorneys' fees incurred in the preparation and prosecution of such action or proceeding. 10.10 Term. This Agreement and the easements, rights, obligations and liabilities created hereby shall encumber the Shopping Center for a period of fifty (50) years, or such lesser period if and to the extent a lesser period is required by applicable law, and thereafter the terms hereof shall be renewed automatically for successive ten (10) year periods unless all Owners and any parties owning at that time any security interest in any of the Parcels execute and record in the Brazos County, Texas, real estate records a statement terminating such restrictive covenants within sixty (60) days of the expiration of such statutory period or any ten (10) year renewal thereof, 10.11 Consent and Approvals. Whenever any proposed action by any Owner(s) of a Parcel requires the consent or approval of the Owner(s) pursuant to this Agreement, then the Owner requesting such consent or approval shall submit to the Owner(s) a written notice delivered in accordance with Article 9 above describing the action for which such Owner seeks consent or approval, together with full, complete, and legible copies of all such documents or instruments reasonably necessary for the Owner(s) to review in connection with such request. Unless otherwise provided in this Agreement, the other Owner(s) shall have ten (10) business days from the date such notice is delivered or deemed delivered hereunder in which to respond to the request of such Owner for consent or approval. Unless otherwise provided in this Agreement, if the other Owner(s) do not respond to such request within the ten (10) business day period, such Owner(s), save and except only HEB, whose consent and approval shall be required in writing, shall be deemed to have consented to and approved the action for which consent or approval was requested if the notice requesting such consent or approval expressly states in bold face type, in all capital letters, in a conspicuous place, that failure to respond within such ten (10) business day period will be deemed to constitute consent or approval. Unless otherwise expressly provided in this Agreement,'whenever a consent or approval is required, such consent or approval shall not unreasonably be withheld, hindered, conditioned, or delayed. Each party shall bear its own costs and expense (including attorneys' fees) in connection with any requests for approval or consent. If and to the extent any other provision of this Agreement provides for a different method, standard, or time fames with respect to obtaining the consent of an Owner, such other provision shall control, it being the intent of the Owners that this provision govern all situations for which no express procedure has otherwise been provided. 10.12 Subdivision of a Parcel Effect of Subdivision of Farce[ on Uwner's Uonsent Requirements. If an Owner subdivides its Parcel, until such time as the resulting Owners of a subdivided Parcel have, by a written notice delivered to all of the other Owners, designated a single Owner to grant or deny any approval or consent on their behalf, whenever the consent of the Owner(s) of such Parcel is required pursuant to this Agreement, and except with respect to the consent of HEB, the Owner of the largest of such resulting lots or parcels, as the case may be, shall have the sole right to grant or deny the requested approval or consent on behalf of all Owners within such subdivided Parcel. If a subdivision results in equal size Parcels, then the Owner of the original Parcel so divided shall have the sole right to grant or deny the requested approval or consent on behalf of all Owners within such subdivided Parcel. 21 062007,00600 129739M 01U54oc 761 0fi 45Q0 119 { '-. o` Ps D1052637 Ok 4497 10,13 Estoppel Certificate. At anytime, and from time to time (but not more often than once every calendar quarter), within twenty-one (21) calendar days after notice or request by an Owner, the other Owner(s), at no cost to the requesting Owner and, if applicable, such requesting Owner's lender and/or a prospective lender or purchaser (and such purchaser's lender) with respect to the requesting Owner's Parcel, shall execute and deliver to such requesting Owner a statement certifying: (a) that this Agreement is unmodified and is in full force and effect (or if there have been modifications, certifying that this Agreement is in full force and effect as modified in the manner specified in such statement); (b) that there exists no default under this Agreement except as otherwise specified in such statement; and (c) to such other matters relating to this Agreement as may reasonably be requested by the requesting Owner. 10.14 Subordination. The liens of any mortgage loans or deeds of trust now or hereafter obtained by an Owner secured in whole or in part by any part of a Parcel shall be subordinate to this Agreement, and the Owner whose Parcel is burdened by such liens shall cause the liens to be so subordinated promptly upon the execution of this Agreement. . 10.15 Time is of the Essence Time is of the essence in the performance of this Agreement. [SIGNATURE PAGE TO FOLLOW[ 22 062007.00600 12973M0 Doc U. Vol Ps 01054761 OR 9530 120 Vo _ 0526,i7 OR a EXECUTED effective the date first written above. Mmu BEB GROCERY OIf4PANY, LP, a Texas limited p ersbip 4 By' Name: Todd A. Piland Title: Executive Vice Presidentof Real Estate THE STATE OF TEXAS COUNTY OF BEXAR The foregoing instrument was acknowledged before me this ?day of 2 2010, by Todd A. Piland, Executive Vice President of Real Estate of HEB GROCERY CONTANY, LP, a Texas limited Partnership, on behalf of said partnership. f.p^.t PfaRA tSAtDANA �,�GL---w=a"'t�O`�" Notary Pu01io, State of Texas Notary Public in and for MCrCII Expires .2014 The State of Texas 23 ov2007.00600 12973940 Ooc gk Vol Ps 01054r61 OR 9S311 121 01052637 0k Vol '54 CS MARKETPLACE: COLLEGE STATION MARKETPLACE, L.P., a Texas limited partnership BY: COLLEGE STATION MARKETPLACE, GP, LLC and BY: CROWLEY I)MLOPMENr, LLC By: lk� itoyfteMLpaAfier By: Name: Timothy J. Crowley Title: Manager THE STATE OF TEXAS COUNTYOF Rrn�ne bruary The foregoing instrument was acknowledged before me this 9th day of Fe2010, by Timothy J. Crowleythe Many -or of U general partnersof College Station MarketPlece, L.P., a Texas limited partnership, on ha of said limited partnership. "* and CROWLEY MNELOPIEW, LLC. otaryl`bhc' and r The Stat of Texas 4 LWDOMM MON MYCAMIOMWEXPIaFS P7.S AprQA2D13 After recording return to: Ami E. Gordon Drenner & Golden Stuart Wolff LLP 300 Convent Street, Suite 2600 San Antonio, Texas 79205 24 062007.00600 12973940 91053761 OR 9530 122 O10Sd37 OR M7 Fs Consent and Subordination of Lender To Declaration o£%ffents, Covenants, Conditions and Restrictions First Victoria NationaI("j!ender`), owner and holder of certain liens for the benefit of Lender, executed by Timothy C. Jones, 5VP recorded in the Real Property Records of Brazos County, Texas (collectively, the "Security Instruments") (i) hereby consents to the foregoing Declaration of Easements, Covenants, Conditions and Restrictions ("Declaration") to which this Consent and Subordination of Lender is attached and the imposition of the Declaration on the real property encumbered by the Security Instruments and (ii) confirms that from and after this date, the provisions of the Declaration will be superior to all liens in favor of Lender and Lender's rights under the Security instruments. Lender: FIRST V1{I=RIA NATIONAI�IWW By �U Name: �. C ,.Ja Icy Title: 1 ee I STATE OF TEXAS COUNTY OF Brazos This instrument was acknowledged before me on February 10 , 20I0 by Timothy C. Jones Senor Vice President First Victoria Nat ional Bank, a National Banking** on behalf of said association ** Association otary ublic, St too exas M�m Ltt�DAtdOHGANMYconawssouo:x M Apd23,2013 25 00007.00600 12973MO EXffiB1T A Tower Point Subdivision - Phase 3 Lot 12, 13A and 13C -1629 Acre Tract Robert Stevenson Survey, A-54 College Station, Brazos County, Texas Leo Ps 01052637 ON 9<9� Field notes of an 1629 acre tract orparcei of land, lying and being situated In the Robert Stevenson Survey, Abstract No, 54, College Station, Brazos County, Texas, and being part of the 89.42 acre - Tract One, described in the deed from TimothyJ. Crowleyto College Station Market Place, L.P., recorded in Volume $274, Page 111, of the Official Records of Brazos County, Texas, and said 16.29 acre tract being more particularly described as follows: BEGINNINGatthe common comerbetweenthe beforementloned 69.42acre tract and Lot 2, South Park Estates, Phase One, according to the plat recorded in Volume 795, Page 259, ofthe Official Recordsof Brazos County, Texas, from which an 8' creosote post bears N 229 40' E -1.0 feet; THENCE S 609 SW 37' E along the common line between the beforementioned 89.42 acre tract and South Park Estates, fora distance of 138.71 feet to a'M." Iron rod set in the northwest right-of-way line of State Highway No. 40 (W. D. Fitch Parkway); THENCE S 489 59' 02" W along the northwest right-of-way line of the beforementioned State Highway No. 40, fora distance of285.73 feetto a %Iron rod set; THENCE along the centerline of a proposed 40' wide private access easement and public utility easement, as follows: N41P00'68'W for a distance of 45.94 feetto a'A"iron rod set at the beginning of a curve, concave to the south, having a radius of 150.00 feet, Westerly along said curve, for an arc distance of 117.14 feetto a ^r4" Iron rod set at the end of this curve, the chord bears N 639 23' 16" W-114.18 feet, N 859 4T 33" W fora distance of 651.82 feetto a %" Iron rod set in the east line of a proposed 28' wide private access and public utility easement; THENCE along the east and southeast lines of a proposed variable width private access easement and public utility easement, as follows: N 04014'27'E for a distance of53.00 feetto a W iron rod.set at the beginning of a curve, concave to the west, having a radius of 414.00 feet, Northerly along said curve, for an arc distance of 16525 feet to a W Iron rod set at the beginning of a reverse curve, concave to the east, having a radius of 443.00 feet, the chord bears N 07911' 39" W-164.16 feet, Northerly along said curve, for an are distance of 683.18 feet to a ^'A" iron rod set at the beginning of a reverse curve, concave to the northwest, having a radius of 514.00 feet, the chord bears N 259 33'.02" E - 617.46 feet, Northeasterly along said curve, for an arc distance of 164.06 feet to a W iron rod set at the end of this curve, the chord bears N 609 35' 11" E-163.36 feet. N 519 26' 34" E for a distance of 182.22 feet to a 1W iron rod set' In the southwest right-of-way line of State Highway No. 6; xLINO E401NEaRIN0 MD SURVEYING WAN.Y 01053fZ7 ep V'n1 og 227 01054 61 OF 9530 124 Tower Point Subdivision - Phase 3 Lot 12, 13A and 13C -1629 Acre Tract Robert Stevenson Survey, A-54 College Station, Brazos County, Texas Continued - Page 2 THENCE along the southwest right -of --way line of the beforementioned State Highway No. 6, as follows: S 3803T 26"E fora distance of562.50 feet, a concrete right-of- way marker found bears N 190 15'E - 0.27 feet, S 430 30' 26" E for a distance of 103.26 feet to a W Iron rod found marking the common comer between Lot 1, South Park Estates, and the beforementioned 89.42 acre tract; THENCE S 28° 59' 26' W along the common line between the beforementioned 89.42 acre tract and South Park Estates, for a distance of370,00 feet to the PLACE OF BEGINNING, containing 1629 acres of land, more or less. Surveyed November 2009 2003 Prepared 1112om emosa.mm.. Whpkl-%Asa.asa wn� cnwnumnn nn� aurcvanne o� Vol' Ps 0105Td37 OR 9 BiCMzx Doc Sk Vol P, 03054761 OR 95530 125 College Station Marketplace, LP 50.55 Acre Tract Robert Stevenson Survey, A-64 College Station, Brazos County, Texas Field notes of a 50.55 acre tract or parcel of land, lying and being situated in the Robert Stevenson Survey, Abstract No. 54, College Station, Brazos County, Texas, and being part of the 69.42 acre -Tract One, and all of the 4.65 acre -Tract Three described in the deed from Timothy J. Crowley to College Station Market Place, L.P., recorded In Volume 8274, Page 111, of the Official Records of Brazos County, Texas, and said 50.65 acre tract being more particularly described as follows: BEGINNING at a %' iron rod set in the south right-of-way line of State Highway No. 6, said iron rod is located S 47019' 17' E along State Highway No.6 for a distance of 197.75 feet from a''A' iron rod found marking the north comer of the beforementioned 89.42 acre - Tract One; THENCE along the southwest right-of-way line of State Highway No. 6, as follows: S 47' 19' 17" E for a distance of 587.62 feet to a'h' iron rod found, S 380 3T 26" E for a distance of 651.67 feet, to a W Iron roll found marking the north comer of the proposed HEB - UA8 acre primary tract; THENCE along the northwest line of the beforementloned proposed HEB - 14.48 acre primary tract, as follows: S 51° 26' 34" W for a distance of 182.22 feet to a'h" iron rod found marking the beginning of curve, concave to the northwest, having a radius of 514.00 feet, Southwesterly along said curve for an are distance of 164.05 feet to a W Iron rod found marking the beginning of a reverse curve, concave to the east, having a radius of 443.00 feet, the chord bears S 600 35' 11" W-163.36 feet, Southerly along said curve for an arc distance of 683.18 feet to a'I/V iron rod found marking the beginning of a reverse curve, concave to the west having a radius of414.00 feet, the chord bears S25033' 02" W - 617.46 feet, Southerly along said curve. for an arc distance of 165.25 feet to a'Fe" Iron rod found marking the end of this curve, the chord bears S 070 11'39' E-164.16 feel S W 14' 27" W for a distance of 53.00 feet to a'A iron rod found marking the west comer of the said 14.48 acre tract; THENCE along the south line of the beforomentioned 14.48 acre tract and the southwest line of the proposed HEB -1.81 acre rear tract, as follows: S 850 45' 33" E for a distance of 651.82 feet to a W iron rod found marking the beginning ofa curve, concave to the southwest, having a radius of 150.00feet, Southeast along said curve, foran are distance of It 7.14feet to a W iron rod found marking the end of 11nLs curve; the chord bears S 6302T 18' E-114.18 feel, S 41' 00' 58" E for a distance of 45.94 feet to a''A" iron rod found marking the south oomerof the said 1.81 acre tract, said h" Iron rod also being in the northwest right-of-way tine of State Highway No. 40; wnv I,VCTIXV BflYAN TCXAS Doc U Vol 01054761 OR MO 126 I Vol Ps 01052537 D _229 College Station Marketplace, LP 50,55 Acre Tract Robert Stevenson Survey, A-54 College Station, Brazos County, Texas Continued - Page 2 THENCE along the northwest right-of-way line of the beforementioned State Highway No. 40, as follows: S48059'02"W for a distance of 572.83feet, aconcrete rghtof- way marker bears S 48043' W - 025 feet, $ 500 47' 22" W for a distance of 974.50 feet to a concrete right. of -way marker found a 6" creosote post fence comer bears N 200 OT E -1.5 feet, S 530 41' S4" W for a distance of 177.54 feet to a W iron red found marking the most southerly east comer of Arrington Road - 80'. right-of-way as shown on the Rightof--way Dedication Arrington Road and 80' Decatur Drive according to the plat recorded in Volume 7600, Page 12, offhe Official Records of Brazos County, Texas, said W Iron rod being the beginning of a transition curve, concave to the north, having a radius of 30.00 fact, said comer also being the south comer of the beforementioned 4.65 acre - Tract Three; THENCE along the east and northeast right-of-way line of Arrington Road, as follows: Westedy along said curve, for an arc distance of 51.56 feet to a W Iron rod found marking the end of this transition curve, the chord bears N 770 ON 10" W - 45.44 feet, N 270 50' 14" W for a distance of 449.67 feet to a W" iron rod found marking the beginning ofacurve, concave to the east, having a radius of 733.64 feet, Northerly along said curve, for an are distance of 925.36 feet to a W iron rod found marking the end of this curve, the chord bears N 08017' S9' E - 865.21 feet, N 44026' 29" E for a distance of $24.06 feet to a'A' iron rod found marking the beginning of a transition curve, (transl8oning around a turnabout), having a radius of 50A0 feet, Northeasterly along said curve, for an arc distance of 56.69 feet to a 'IV Iron rod found marking the beginning of a compound curve, concave to the south, having a radius of 300.00 feet, the chord bears N 760 20' S1" E - 52.85 feet, Easterly along said curve, for an arc; distance of 146.44 feel to a t4" iron rod found marking the end of this curve, the chord bears S 570 43' 26" E-144.99 feet, S 430 44' 24" E for a distance of 20.00 feet to a %" Iron rod found, N 46016 36" E for a distance of 65.00 feet to a %" Iron rod found marking the most easterly comer of Arrington Road right-of-way, N 430 44' 24" W for a distance of 20.90 feet to a W iron rod found marking the beginning of a curve, concave to the southwest, having a radius of 437.00 feet, Northwesterly along said curve, for an arc distance of 61.71 feet to a - 'A" Iron rod found marking the beginning of a reverse curve, concave to the northeast, having a radius of84.00 feet, the chord bears N4r 47' 48" W - 61.66 feet, K ND ENe1NEERINe AND SDRMINe my^ n'NAS Oac ek Vol Po ! 01054761 OR MO 127 01052 337 OR Uol P9 College Station Marketplace, LP 50.55 Acre Ted Robert Stevenson Survey, A-54 College Station, Brazos County, Texas Continued - Page 3 Northwesterly along said curve, foran am distance of 86.90 feet to a W Iron rod found marking the beginning of a reverse curve, concave to the southwest, having a radius of 91.00 feet, the chord bears N22032' 52" W - 82.20 feet, Northwesterly along said curve, for an arc distance of 122.76 feet to, a %" Iron rod found marking the beginning of a reverse curve, concave to the northeast, having a radius of 384.00 feet, the chord bears N 31 e 53' S8" W-113.66 feet, Northwesterly along said curve, for an am distance of 179.58 feet to a W iron rod found marking the end of this curve, the chord bears N 57e08' 55" W-177.04 feet, N 430 45' 05" W for a distance of 115.32 feet to a %" Iron rod found marking the south comer of the proposed 22.59 acre detention area; THENCE along the southeast tine of the proposed 22.59 acre detention area, as follows: N 60034' 18" E for a distance of 312.05 feet to a %" iron rod found marking the beginning of a curve, concave to the northwest, having a red [us of 380.00feet, Northeriyalong said curve, foran arc distance of 506.36 feet to aI%" Iron rod found marking the end of this curve, the chord bears N W 23' 52" E - 469,72 feet, N 15e 46' 35' W for a distance of 448.00 feet to a %" Iron rod found markingthe beginning ofa curve, concave to the east, having a radius of 200.00 feet, Northerly along said curve, foran arc distance of 204.05 feet to a'h" Iron rod found marking the end of this curve, the chord bears N 13027' 04" E-195.31 feet, N 42040' 43" E for a distance of 27.13 feet to the PLACE OF BEGINNING, containing 50.55 acres of land, more or lass. 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Z W to W SXX� OFpJp tUO 1-NU W W J 0x 8k Vol Pg 01054761 OR 920 $if Ii' filed for Record in: BRAZOS MIT On: Mar 11,2010 at 11=02A As a dings Document AAA! 01054761 A.Wnt 200.00 Receipt Ruxher - aMES Bvr Kim Green STATE Of TEXAS CCMrry OF BRAZOS I herehv Wtifv that this instrument Was filed on the date and time stawN hereon by me and Was duly recorded in the volwe ad Paso of the Official Pohl!, records arm BRAZOS CWNTY as stamped hereon by ne. 1" 11,2010 BOKORAPA.E RARER MCOMEFI, COORTY CLERK BRAZOS COUNTY 10052637 BO f0R 9497 248 ^ Filed far Record ' . BRAZOS CWW, sFea 10r21I0 03:31P /Welp nt 0IM637 Amount116.00 eip\383M 383Mi leSMMY OF BRAZOS bv eat this instrument Was re datstewed herem byas rect volume and page ocial em ds of:BMmhereoFeb Witi N,E " hC2UEEIir CORKY CL X Do,- Bk Val Fs 01084017 OR 10036 24 DECLARATION OF SUPPLEMENTAL EASEMENTS COVENANTS AND RESTRICTIONS THIS DECLARATION OF SUPPLEMENTAL EASEMENTS, COVENANTS AND RESTRICTIONS (this "Declaration") is made as of the jg!� day of February, 2011 (the "Effective Date"), by COLLEGE STATION MARKETPLACE, LP, a Texas limited partnership ("Developer"). RECITALS WHEREAS, Developer is the owner of: (i) approximately 49.26 acres of real estate situated in Brazos County, Texas described in EXHIBIT A-1, such tract along with Lot 14 (as defined below), being collectively depicted on EXHIBIT A-2; and (ii) the Detention Area (as defined below) and described in EXHIBIT A-3. WHEREAS, the Developer is the owner of approximately 15.0 acres of real estate situated in Brazos County, Texas and described in EXHIBITS B-1 and B_2 (the "North Lots"). WHEREAS, Developer has deemed it desirable, and in the best interests of the Owners of the Lots in the Development (as such terms are hereinafter defined), to enter into this Declaration in order to facilitate a cohesive commercial development, to preserve the property values in the Development, to facilitate the integrated use of the Development for the benefit of each Owner, for the efficient maintenance and improvement of the common areas in the Development and administration of the covenants, to create an owners' association to which will be delegated and assigned the powers and responsibilities of maintaining certain common areas within the Development, enforcing these restrictions, and collecting and disbursing the assessments and charges hereinafter created, and performing all other functions as set forth in this Declaration. WHEREAS, Developer intends to cause a non-profit corporation to be incorporated under the Texas Non -Profit Corporation Act to be designated as the owners' association described above. NOW, THEREFORE, it is hereby declared that the property within the Development shall be held, sold and conveyed subject to the following easements, covenants and conditions, which are for the purpose described above and which shall run with the Development and shall be binding on and inure to the benefit of each Owner and "Permittee" (as defined below): ARTICLE 1 - GENERAL PROVISIONS Section 1.1 The following terms shall be defined as set forth below: "Adjoining Owner": shall mean the Owner of a Lot on which any part of a Joint Drive is located. "Affiliate": (a) Any corporation in which Developer (as defined herein) or any partner, shareholder, director, officer, member, or manager of Developer directly or indirectly owns or controls more than five percent (5%) of the beneficial interest, (b) any partnership, joint venture or limited liability company in which Developer or any Related Person or any partner, shareholder, director, officer, member, or manager of Developer is a (001014515) Page 1 Dor_ 81, Vol ' Fe 01084017 OR 10036 25 partner, joint venturer or member, (c) any trust in which Developer or any partner, shareholder, director, officer, member or manager of Developer is a trustee or beneficiary, (d) any entity of any type which is directly or indirectly owned or controlled by Developer or any partner, shareholder, director, officer, member or manager of Developer or, (a) any partner, shareholder, director, officer, member, manager or employee of Developer. "Approved Plan": A Plan approved by the Developer as set forth in Section 6.1. "Area D North": The portion of the Development described in EXHIBIT C-1 and shown on page 2 of EXHIBIT A-2. "Assessments": The Common Area Charges and other assessments described in Article 3. "Association": A nonprofit corporation that Developer organizes under the laws of the State of Texas for purposes of assisting with the improvement, maintenance, use and care of the Association Controlled Common Areas and exercising all or any duties and prerogatives of Developer, its successors or assigns, arising out of or relating to this Declaration. Until the Association is organized by Developer, Developer shall exercise any and all duties and prerogatives designated to the Association under this Declaration. "Association Controlled Common Areas". The Detention Area, Critical Access Drives and Utility Facilities. "Board": The Board of Directors of the Association. "Building": The building(s) that may be constructed, placed or located within the Building Areas on the Lots, subject to the terns of the REA, if applicable, and this Declaration. "Building Areas": The limited area of the Development within which Buildings may be constructed, placed or located, as determined by the REA, if applicable, and the Association from time to time. "City": The City of College Station, Texas unless otherwise denoted. "Common Areas": Collectively, the Owner Controlled Common Areas and Association Controlled Common Areas. "Connector Road": The drives designated on EXHIBIT A-2 as the Connector Road. "Critical Access Drives": Certain drives and associated lighting in the Development consisting of: (a) the REA Access Drives; (b) the Connector Road; and (c) any other drives servicing the Development designated by the Developer by recorded instrument during the Developer Control Period or thereafter by the Association to be a Critical Access Drive, but excluding the Joint Drives. "Common Area Charges": The charges defined in Section 3.6(b). "Detention Area": The Detention Area depicted on the Development Drawing and described in EXHIBIT A-3. (00101451 5) Page 2 Doc_ Ek Vol Ps 01084017 OR 10OU 26 "Developer Control Period": The period commencing on the date of the recording of this Declaration in the Official Records of Brazos County, Texas and continuing thereafter until and ending on the earlier to occur of: (1) the date the Developer or its Affiliates no longer owns any Lot within the Development; or (h) the date determined by Developer to be the and of the Developer Control Period. "Development": The land described in EXHIBIT A-1 and labeled "Development" on EXHIBIT A-2. "Development Drawing", The depiction of the Development attached as EXHIBIT A-2. "Environmental Law": Any federal, state or local environmental, health and/or safety related law, and any related decision of the courts, ordinance, rule, regulation, code, order, directive, guideline, permit or permit condition. "Hazardous Materials": Any chemical, substance, material or combination thereof which is or may be hazardous to human health or safety or to the environment due to its radioactivity, ignitability, infectiousness or other harmful or potentially harmful properties or effects, including petroleum and petroleum products, asbestos, radon, polychlorinated biphenyls ("PCBs") and all of those chemicals, substances, materials or combinations thereof that are listed, defined or regulated in any manner by any Environmental Law. "HEB Parcel": The parcel of real property designated as the HEB Parcel in the REA. "Joint Drive": A shared access drive located on two or more Lots that is not a Critical Access Drive and that connects such Lots to a Critical Access Drive; provided, however, any shared drive between Lot 14 and an Adjoining Lot and between Lots 7 and 8, Block , Tower Point Subdivision, Phase 11A, according to plat recorded in the Official Records of Brazos County, Texas, are not Joint Drives hereunder. "Ltenholder": The holder of a mortgage lien on any portion of the Development. "Lot": Each Lot within the Development created by a Plat. "Lot 14": Lot 14, Block 3, Tower Point Subdivision, Phase 4, an addition to College Station, Texas according to plat recorded In Volume 9699, Page 156, Official Records Brazos County, Texas and generally shown on EXHIBIT A-2. "Occupant": Any Person from time to time entitled to the use and occupancy of any Lot or portion of any Lot pursuant to ownership right, or any lease, sublease, license, concession, or other similar agreement. "Owner": The record owner, whether one or more persons or entities, of fee simple title to a Lot, and their respective successors and assigns who become owners of any portion of the Development; provided, however, unless otherwise set forth in this Declaration, the term "Owner shall not include any Lienholder or any Occupant. Each Owner shall be liable for the performance of all covenants, obligations and undertakings herein set forth with respect to the portion of the Development owned by it which accrue during the period of such ownership. The transferee of an Owner transferring all or any (00101451 5) Page 3 ..,........J,,.:.,..:.-.,w.,M.,....,...,.,...,...:m..?rwmu.•.w"-,......>..«w....,.nn.,mxnWH.,.......,.._o....w�ev.M.�:..,.�.:.e..,>....._........�..............>...:...,.. ro Doc Dk Vol Pg 0108400 DR 11036 27 portion of its interest in a Lot to such transferee shall give written notice in recordable form to the Association of such transfer and shall include therein the name and address of the transferee and a copy of the legal description of the Lot transferred. Each Owner shall enjoy the benefits imposed on such Owner's Lot by this Declaration including but not limited to the right fo enforce the terms and conditions of the Declaration (except as provided below) and shall be subject to the burdens imposed by this Declaration. Notwithstanding the above or any definition contained herein to the contrary, in no event shall any Occupant; Permittee or ground lessee have the right to enforce the terms, conditions or any other part of this Declaration unless the Owner has assigned such enforcement rights in writing to an Occupant or ground lessee. "Owner's Pro Rata Share": For all Lots, the percentage equal to the acreage of an Owner's Lot divided by the total acreage of all Lots within the Development (except Area D. North) which, as of the date of this Declaration, is 31.63 acres. On the first date that an establishment in Area D North opens for business to the public, Area D North (17.63 acres) will be included in the calculation of total acreage of all Lots in the Development for purposes of calculating an Owner's Pro Rate Share. Each Owner's Pro Rata Share may be adjusted from time to time if the total acreage of Lots subject to this Declaration increases or decreases. "Owner Controlled Common Areas": All areas of the Development other than the Building Areas and the Association Controlled Common Areas. The Owner Controlled Common Areas shall include fire corridors, automobile parking areas, access roads, sidewalks, traffic lanes, parcel pickup areas, service drives, entrances and exits from and to public roads, curbs, landscaping, lighting facilities and stairways. The Owner Controlled Common Areas shall not include outdoor sales areas, loading docks or drive thru(s) or loading areas situated within the Development. "Permittee": shall mean any Occupant and the officers, directors, employees, agents, contractors, customers, vendors, suppliers, visitors, invitees, licensees, subtenants, and concessionaires of such Occupant insofar as such person's activities relate to Occupant's Intended use of the Development. Among others, persons engaging in the following activities in the Common Areas of the Development will not be considered to be Permittees: (i) exhibiting any placard, sign, or notice; (ii) distributing any circular, handbill, placard, or booklet; (III) soliciting memberships or contributions; and (iv) failing to follow regulations relating to the use of the Development. "Person": shall mean any individual, partnership, firm, association, corporation, trust, trustee, limited liability company, or any other form of business or government entity. "Plans": shall have the meaning set forth in Section 6.1 of this Declaration. "Plan Approval": "Plan Approval" shall have the meaning set forth In Section 6.1 of this Declaration. "Plat": Any subdivision plat of all or any portion of the Development recorded in the Official Records of Brazos County, Texas. "REA": The Declaration of Easements, Covenants, Conditions and Restrictions recorded in Volume 9530, Page 98, Official Records Brazos County, Texas, as amended. (00101451 51 Page 4 Doc_ Bk Vol P9 01084017 0R 10036 28 "REA Access Drives": Those driveways designated as Access Drives in the REA. "Sign Criteria": Those certain drawings and criteria for the design of the Pylon Sign and other pylon and monument signage in the Development and the size, design and location of the sign fascia thereon and the criteria for the exterior building signs in the Development, all the foregoing as designated by Association from time to time by the recording of a supplemental instrument. "Utility Facilities": Any network of pipes, lines, conduits, wires and other interconnecting facilities within the Development through which pass heat, air conditioning, water, sewage, storm drainage, telephone, electricity, gas and/or other utility services; any fire sprinkler system; any security and alarm system; any music system; and any television or cable service which are provided for the common use of Permittees. Utility Facilities shall not include any utilities situated underneath the footprint of any Building in the Development, utilities located within a public utility easement, or those facilities and systems which are installed to provide the applicable service only to certain Lots or portions of Lots. ARTICLE 2 — Section 2.1 Drainage and Detention Easement. Developer hereby establishes a non-exclusive easement on, over and across the Owner Controlled Common Areas and Association Controlled Common Areas to discharge surface storm drainage and/or runoff over and accross such Owner Controlled Common Areas and Association Controlled Common Areas, as applicable, to the Detention Area; provided, no Owner shall construct a drainage/retention system on its Lot, or alter the surface of its Lot, without the consent of the Association if such construction or alteration would materially increase the flow of surface water onto other Lots, the Common Areas or Detention Area either in the aggregate or by directing the flow of surface water to a limited area. Section 2.2 Easement for Maintenance of the Association Controlled Common Areas. The Developer hereby reserves, for itself and the Association, an exclusive perpetual easement on the Lots as necessary for maintaining, constructing, repairing and replacing all of the landscaping, lighting, Detention Areas, Critical Access Drives and other facilities and improvements of the Association Controlled Common Areas. Section 2.3 Indemnity. Each Owner shall indemnify and save harmless the other Owners and their respective Occupants from all claims, liens, damages and expenses, including reasonable attorneys' fees, arising out of its use of any of the easements established in this Article 2. Section 2.4 No Dedication to Public. Nothing herein shall create a gift or dedication of any portion of the Development to the general public. Notwithstanding any other provision hereof to the contrary, each Owner may periodically restrict ingress and egress on its portion of the. Development in order to prevent a prescriptive easement from arising by continued public use of same. Any restriction on ingress and egress shall be limited to the minimum time period necessary to prevent the creation of a prescriptive easement and shall occur at such times as to have minimum effect on the use of the easements granted herein. (00101451$1 Page 5 Doc Bk Vol Pe 01084017 DR 10036 29 ARTICLE 3 - MAINTENANCE & UPKEEP OF DEVELOPMENT: TAXES Section 3.1 Maintenance of Owner Controlled Common Areas. The Owner of each Lot shall, at its sole expense, manage, operate, and maintain the Owner Controlled Common Areas located on such Lot in a clean, safe and first class condition similar to similar retail centers in College Station, Texas. Such obligation includes, without limitation, the following: (a) Maintenance of surfaces of all paved portions of the drives and parking areas located on the Lot, so that surfaces are level, smooth and evenly covered with the type of surfacing material originally installed or a substitute material that is equal in quality, appearance, and durability to that used in the remainder of the Development. (b) Removal of all papers, debris, filth, and refuse from the Owner Controlled Common Areas located on the Lot, and washing or thoroughly sweeping paved areas as required to maintain Owner Controlled Common Areas in a first-class, clean condition. Maintenance, cleaning, repair and replacement of all grease traps, if any, located in Owner Controlled Common Areas. (c) Maintenance, repair, and replacement as necessary of entrances, exits directional signs, markers striping, and lights in the Owner Controlled Common Areas. , (d) Cleaning, repairing and replacing light bulbs of lighting fixtures in Owner Controlled Common Areas as needed. (e) Keeping all Owner Controlled Common Areas on its Lot free and clear of any obstructions not required or permitted under this Declaration, including but not limited to the sale or display of merchandise in the Owner Controlled Common Areas. Section 3.2 General Operation and Maintenance of Lots. Each Owner shall, at its sole expense, manage, operate, and maintain its Lot by: (a) Diligently maintaining, repairing and replacing that portion of the landscaping located on its Lot in a neat, orderly and first class condition at all times. This shall include, but not be limited to, mowing of grass of six inches (6") or higher, edging, pruning, fertilizing, watering, weeding and other such activities common to the maintenance of landscaping. At all times, each Owner must keep landscaped areas free of trash, litter, weeds, and other unsightly material. All plant materials must be maintained in a healthy and growing condition as is appropriate for the season of the year. Plant materials which shall be replaced with plant material of similar variety and size, within thirty (30) days. An extension of this time may be granted by the Association if substantial evidence is presented to indicate abnormal circumstances beyond the control of the Owner. (b) Paying all electrical, water and other utility charges or fees for services furnished to the Owner's Lot. (00101451 5) Page 6 Doc Bk Vol Ps 01084017 OR 100.36 30 (c) Except as Indicated on an Approved Plan, placing no signs, fences, hedges, curbs, barriers, walls or other structures which would prohibit the free flow of pedestrian or automotive traffic or restrict visibility of other Owners' Buildings or signage. (d) To the extent applicable, requiring, and using whatever efforts necessary to compel all Occupants and Permittees on its Lot to comply with the requirements of this Declaration. (a) Constructing any retaining wall and other structures necessary for the development of the Lot in accordance with the Approved Plans for the Lot. Section 3.3 Maintenance of Improvements. Each Owner, at its sole expense, must maintain or cause the Occupant of the Lot to maintain any Building and other improvements located on that Owner's Lot in first-class condition and appearance at all times and in conformity with the general character and quality of properties in the Development. Such maintenance and repair includes, but is not limited to: (a) The replacement of worn and/or rotted components. (b) The regular painting of all exterior surfaces. (c) The maintenance, repair and replacement of signs, roofs, rain gutters, down spouts, exterior walls, windows, doors, and other exterior portions of any Building and other improvement to maintain an attractive appearance. (d) The cleaning and relamping of lighting fixtures located on any building or improvement. (a) The maintenance, cleaning, repair and replacement of all grease traps and exhaust fans located in any Building or improvement. (f) Maintaining, repairing and replacing any retaining wall and any other structures necessary for the development of the Lot in accordance with the Approved Plans, if applicable, for the Lot. (g) Make all structural repairs to any Building or improvements located on Lot, including but not limited to all repairs to the foundation, load bearing walls, roof and any other structural members thereof. Section 3.4 Owner's Failure to Maintain. In the event an Owner shall fail to maintain, repair or replace its Lot or the improvements located thereon in the manner prescribed herein, the Association may at its option, after ten (10) days' written notice to such Owner except in the case of emergency where no notice is required, enter upon such Owner's Lot and undertake to maintain and care for such Lot or improvements thereon to the condition required hereunder, and the Owner thereof shall be obligated, when presented with an itemized statement, to reimburse the Association for the cost of such work within ten (10) days after presentment of such statement, plus interest at the rate provided under Section 3.7 from and after Association's payment for the work. (00101451 51 Page 7 Doc Vol 01084017 OR 10036 P31 Section 3.5 Maintenance of Association Controlled Common Areas. The Association shall, except as otherwise provided herein, pay all costs of repair, maintenance, replacing and cleaning of the Association Controlled Common Areas and maintain same in a clean, safe, sightly and serviceable condition. Section 3.6 Common Area Charges. (a) Each Owner shall be obligated to pay to the Association such Owner's Pro Rats Share of all Common Area Charges. Any Owner taking title to a Lot hereby agrees that such Owner's Pro Rate Share of Common Area Charges for the REA Access Drives (as defined in the REA) shall be calculated as provided In this Declaration and not as provided in the REA. (b) As used herein, "Common Area Charges" shall, subject to the provisions herein, mean all reasonable costs incurred by the Association with respect to the Association Controlled Common Areas, less any amounts owed by the Owner of the HEB Parcel for such Common Area Charges pursuant to the REA and any amounts owed by the Owner of Lot 14 pursuant to separate instrument and any amounts owed by the owners of the North Lots for the costs associated with the Detention Area pursuant to separate instrument. Common Area Charges will include, without limitation, the following: (i) all amounts paid for cleaning and sweeping, repairing, replacing and restriping of the Critical Access Drives, including snow and ice removal, all of which shall be performed as often as necessary, and for the removal of trash and debris; (ii) maintenance, repair and replacement of planted and landscaped areas located within the Critical Access Drives; (iii) maintenance, repair and replacement of light standards and replacement of bulbs with respect to the lighting and the electrical cost of such lighting; (iv) water and waste water charges; (v) to the extent attributable to such services, wages and salaries of persons directly and actually performing services described herein; (vi) maintenance of any water, electrical and storm sewer lines which exclusively provide service to the Association Controlled Common Areas; (vii) contracting for and administering security services, if the Association so elects, but the Association shall not warrant any level of security or the safety of persons or property at the Development; (viii) the cost of utility services to the Association Controlled Common Areas; (ix) maintenance of the Detention Area; (x) all real property taxes and other special taxes and assessments assessed on the Association Controlled Common Areas; (xi) the cost of public liability insurance and property insurance maintained by this Association for the Association Controlled Common Areas; (xii) fees payable to any management firm for purposes of managing all or any part of the Association or Common Areas; and (xiii) an administrative fee equal to no more than fifteen (15%) percent of the foregoing expenses. (c) Initially, the Association shall provide the Owner an estimate of Owner's Pro Rate Share of the Common Area Charges to be paid monthly by such Owner through the end of the then current calendar year. Prior to the beginning of each calendar year, thereafter, Association shall furnish to each Owner obligated to pay Common Area Charges an estimate of the annual Common Area Charges for such calendar year, and each such Owner shall pay to Association one - twelfth (1l121h) of the Owner's Pro Rate Share of such estimated Common Area Charges during such year. Installments of Common Area Charges shall be due too101451 sl Page 8 Doc Bk Val Ps 01084017 OR 10036 32 and payable on or before the first day of each succeeding calendar month; provided that if the day an Owner becomes obligated to pay Common Area Charges is other than the first day of a calendar month, such Owner shall pay a prorated amount of Common Area Charges based upon the number of days in the partial month. (d) Association shall deliver to Owner an itemized breakdown (an "Accounting") showing the actual costs for Common Area Charges for such year; on or before ninety (90) days after the end of a calendar year. If Owner's Pro Rate Share of the actual costs for Common Area Charges exceeds the amount paid by Owner in such year, then within thirty (30) days after receipt of said Accounting, Owner shall pay to Association such excess amounts. If Owner's Pro Rate Share of the actual costs for Common Area Charges is less than Owner's payments through such period, Owner shall receive a credit against, Owners estimated share payable in the first month after receipt by Owner of said Accounting, and such subsequent months as required to exhaust said credit. (a) Owner, its agents and accountants, shall have the right within ninety (90) days after receipt of an Accounting to examine and audit Association's books and records relating to any cost or item that is passed through to Owner upon ten (10) days written request by Owner to Association. If Owner disputes the accuracy of the charge, Owner shall still pay the amount shown owing pending completion of the audit. If Owner's audit of the books and records shows that the amounts shown on the statement are ten percent (10%) or more higher than the actual amount owed by Owner, Association shall, on demand, reimburse Owner for all reasonable costs of conducting the audit. Any overpayment or underpayment of Common Area Charges shall be adjusted by the parties within ten (10) business days after the audit is completed. Association shall, for three (3) calendar years following the calendar year in which a cost or item was incurred and paid, keep complete and accurate books and records relating to Common Area Charges, which records shall be kept in accordance with sound accounting principles, consistently applied. (f) In addition to the annual assessments authorized above, at any time the Association may levy in any calendar year a special assessment (not to exceed $20,000 per calendar year), for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, repair or replacement of improvements in the Detention Area, including without limitation, landscaping, trails, benches, lighting, shelters and other landscape items ("Special Detention Assessment"). Such Special Detention Assessments shall be apportioned among the Owners of the Lots based on each Owner's Pro Rate Share. Section 3.7 Creation of the Lien and Personal Obligation of Assessments. Each Owner of any Lot by acceptance of a deed therefor, whether or not it shall be expressed in any such deed or other conveyance, covenants and agrees to pay to the Association: (1) Owner's Pro Rate Share of Common Area Charges, to be paid monthly as provided for herein or by the rules and regulations of the Association, (ii) Special Detention Assessments as described in Section 3.6(f) above and (M) any amounts due Association under Sections 3A and 3.12 and Article 10 hereof. Such assessments described above In this Section 3.7 (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 (00101451 5) Page 9 Doc Bk Vol Pe 01084017 0R 10036 33 be a charge on the Lot and shall be secured by a continuing lien which is hereby created and impressed for the benefit of the Association upon the Lot 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 Lot at the time of the Assessment. All sums assessed but unpaid by an Owner chargeable to its respective Lot, including interest thereon at twelve percent (12%) per annum, shall constitute a lien on such Lot superior (prior) to all other liens and encumbrances, except for; (a) All taxes and special assessments levied by governmental and taxing authorities. (b) All liens securing sums due or to become due under any duly recorded third party mortgage vendor's lien or deed of trust. To evidence such lien, the Association may, but shall not be required to, prepare written notice setting forth the amount of such unpaid indebtedness, the name of the Owner of the Lot and a description of the Lot. Such notice shall be signed by the Association and may be recorded in the Official Records of Brazos County, Texas. Such lien for the Common Area expenses shall attach from the date of the failure of payment of the Assessment. Such lien may be enforced by foreclosure of the defaulting parry's Lot by the Association or their successor. Any such foreclosure sale 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 Texas Property Code and Civil Practice and Remedies Code of the State of Texas, or in any other manner permitted by Texas law. Each Owner, by accepting a deed to its Lot, expressly grants to Association a power of sale, as set forth in the Property Code, in connection with the assessment lien. In any such foreclosure, the Owner shall be required to pay, and the lien shall include, the costs and expenses of such proceedings, the cost and expenses for filing the notice or claim of lien and all reasonable attorney's fees. The Association shall have the power to bid on the Lot at foreclosure sale and to acquire and hold, lease mortgage and convey some. The amount of the Common Area Charges assessed against each Owner shall also be a debt of such Owner at the time the assessment is made. Suit to recover a money judgment for unpaid Common Area Charges may be maintained without foreclosing or waiving the lien securing same. Any mortgagee or other lien creditor holding a lien on a Lot may pay any unpaid Common Area Charges payable with respect to such Lot, and upon such payment, such creditor shall have a lien on such Lot for the amount paid of the same rank as the lien of its encumbrance. Section 3.8 Subordination of the Lien to Mortgages. The lien for the assessments provided for herein shall be subordinate to the lien of any recorded mortgage or mortgages granted or created by the party owning such Lot to secure the payment of monies advanced and used for the purpose of purchasing and/or Improving such Lot. Sale or transfer of any Lot shall not affect the assessment lien; provided, however, that the sale or transfer of any Lot pursuant to a foreclosure, a deed in lieu of foreclosure, assignment in lieu of foreclosure under such purchase money or improvement mortgage or deed of trust shall extinguish the lien of such assessments as to payments thereof coming due prior to such sale or transfer. No sale or transfer shall relieve an Owner from liability for any assessments thereafter becoming due or from the lien thereof. (00101451 S) Page 10 Doc P-k Vol Ps 01084017 DR 10036 34 Section 3.9 Statement of Assessments. Upon the written request of any Owner or any mortgagee or prospective encumbrance of a Lot, the Association shall issue a written statement setting forth the unpaid Assessments, if any, with respect to the subject Lot, the Owner's Pro Rate Share, the date of such assessment credit for advance payments or for prepaid items, including, but not limited to, insurance premiums, which shall be conclusive upon the Association in favor of all persons who rely thereon in good faith. The purchaser, donee or other transferee of a Lot, by deed or other writing (herein called "Grantee"), shall be jointly and severally liable with the transferor of such Lot (herein called "Grantor") for all unpaid Assessments against the latter up to the time of the grant or conveyance, without prejudice to the Grantee's right to recover from Grantor the amounts paid by the Grantee, but such transferee shall be personally liable only if it expressly assumes such liability. The Grantee shall be entitled to a statement from the Association setting forth the amount of the unpaid Assessments, if any with respect to the subject Lot, the Owner's Pro Rate Share for each Lot and the date such Assessment becomes due, as well as any credit for advanced payments or for prepaid items, including, but not limited to, insurance premiums. Section 3.10 No Exemption. No Owner may exempt itself from liability for contribution towards the Common Area Charges by waiver of the use or enjoyment of any of the Common Areas or by abandonment of a Lot. Section 3.11 Indemnity by Owners. Each Owner shall indemnify and save harmless the Association and the other Owners from all claims, liens, damages, losses, costs and expenses, including reasonable attomeys' fees and litigation costs, arising out of (a) the sole negligence, gross negligence or willful misconduct of such indemnifying Owner to the extent not insured by the insurance required to be carried pursuant to Section 72 hereof, and (b) from all liens, claims, and demands occurring in, on or about the indemnifying Owner's Lot, or arising out of the construction, use, occupancy, or enjoyment of its Lot and the improvements thereon, or any repairs or alterations which the indemnifying Owner or its Permittees may make upon the Lot. Section 3.12 Payment of Taxes. Each Owner shall pay directly to the tax collector when due the real property taxes and other special taxes and assessments assessed against the Owner's Lot; subject, however, to the right of any such Owner to contest the amount or validity of all or any part of said taxes and assessments. In the event an Owner fails to pay when due all taxes and assessments described above, which failure continues for a period of ten (10) days after receipt of written notice thereof, such failure shall constitute a default and any other Owner or the Association may thereafter pay such taxes if such taxes are delinquent and the owing Owner has not commenced and is not duly prosecuting any contest of such taxes. The curing party shall be entitled to reimbursement from the defaulting Owner for the costs and expenses incurred plus interest at the rate provided under Section 3.7 from and after the date of curing party's payment(s) of such costs and expenses. ARTICLE 4 — MAINTENANCE, REPAIR AND REPLACEMENT OF JOINT DRIVES Section 4.1 Maintenance and Repair. (a) Each Adjoining Owner shall maintain, light, repair, replace, construct, reconstruct, pave, seal, repave, reseal, stripe, and re -stripe that portion of the Joint Drive located on its Lot at a level of appearance and utility consistent with the highest industry standards then {001014515) Page 11 Doi: Pk Vol Ps 01094017 OF 10036 35 prevailing for similarly used properties in the market in which the Development is located. Any Adjoining Owner making any repairs or installations required under this Agreement shall make them in a good and workmanlike manner, in accordance with all applicable laws, free of liens or claims for same, and shall restore the adjacent Lot (inclusive of any Joint Drive areas and improvements thereon) to its former condition upon completion of any such work. No Owner shall obstruct or otherwise unreasonably interfere with the other Owners' use and enjoyment of the easement rights contained herein. (b) If any Owner fails to maintain all or any portion of the Joint Drive located upon its Lot as required above (a "Non -Complying Owner"), and such failure continues for thirty (30) days after written notice from an Owner that is not otherwise a Non -Complying Owner (the "Complying Owner"), then a Complying Owner and/or Its contractors or agents may enter upon the Non -complying Owners' Lot to make needed repairs and/or correct such non- compliance, and the Non -Complying Owner shall, within thirty (30) days following written demand, reimburse the Complying Owner for any and all reasonable costs and expenses incurred in connection therewith. The foregoing right shall be in addition to and shall not in any way limit any other remedies available to the Complying Owner as provided herein or at law or in equity. (c) To the extent a Non -complying Owner shall not make payment of any sums due by any such party to a Complying Owner when due, such sums, including reasonable collection costs and attorneys' fees, shall bear interest at the lesser of ten percent (10%) per annum or the highest non -usurious rate of interest under applicable law, from the date due until repaid, and such sums, together with the applicable interest thereon, shall be a charge and a continuing lien upon the fee or leasehold estate of the Lot of such Non -Complying Owner. (a) Notwithstanding any other provision hereof, as security for the obligations, duties and covenants of each Adjoining Owner, each Adjoining Owner, by its acceptance of a deed to a Lot, whether or not it shall be so expressed therein, but as part of the consideration therefor, hereby expressly grants and conveys its interest in the Lot (either the fee or leasehold estate, as applicable), in trust, to and for the benefit of the Adjoining Owner(s), as a lien upon of such Lot, coupled with a power of sale, and each with the right and power to enforce the aforesaid lien by non judicial foreclosure pursuant to Chapter 51 of the Texas Property Code or in accordance with the prescribed manner for foreclosure of deed of trust liens provided by any future amendment to such statute or any other statute enacted in substitution therefor. All mortgages, deeds of trust and other encumbrances placed upon each Lot for the purpose of constructing, or financing the ownership of the improvements thereon shall be subordinate and inferior to the encumbrance created by this Agreement; provided, however, that any lien created pursuant to this Article 5 shall be subordinate to any bona fide third party mortgage, deed of trust or similar encumbrance placed on a Lot for the purpose of financing the improvement or ownership thereof and all taxes and special assessments levied by governmental and taxing authorities. Section 4.2 Indemnification; Insurance. Each Adjoining Owner (the "Indemnifying Party") agrees to save, defend, indemnify and hold each other Adjoining Owner (the "Indemnified Party") harmless from and against any and all liability or damages which the Indemnified Party may suffer as a result of claims, demands, costs, liens, judgments or awards against such Indemnifying Party arising out of, or in connection with, any use by the Indemnifying Party, its tenants, business invitees, licensees, employees or agents, of the Joint Drive. In addition, each Adjoining Owner shall obtain, maintain and pay for proper public liability insurance coverage for its own Lot and the Joint Drive to cover all activities associated (001014515) Page 12 Doc Ok Vol P9 01084017 OR 10036 36 with the use of the Joint Drive and other improvements associated therewith by Party, Its tenants, business invitees, licensees, agents and employees. Each such policy shall: (a) contain not less than One Million Dollars ($1,000,000.00) per occurrence and in the aggregate, (b) be issued and underwritten by a reputable and solvent insurance company which has at least an W rating by A.M. Best or a comparable rating entity, and (c) name the Adjoining Owner(s) as an additional insured. Notwithstanding the foregoing, each Indemnified Party hereby waives any and every claim which arises or may arise In its favor and against each Indemnifying Party for any and all liability under the indemnification provisions under this paragraph to the extent same is covered by, and collected by the Indemnified Party under, a valid insurance policy, and each Owner shall make a good faith effort to cause any insurance policy obtained by it to provide that the insurance company waives all right of recovery by way of subrogation against the other parties in connection with any damage or injury covered by such policy. Each Owner shelf, within ten (10) days following written request by any other Owner(s), deliver to such requesting Owner(s) a certificate of insurance evidencing that such Owner is carrying the required insurance coverage together with proof of payment of all premiums applicable thereto then due and payable. Section 4.3 No Dedication. Nothing in this Article 4 shall ever constitute or be construed as a dedication of any interest herein described to the public or give any member of the public any right whatsoever to the Joint Drives. ARTICLE 5 - ASSOCIATION Section 5.1 Organization. The Association will be a non-profit corporation created for the purposes, charged with the duties, and vested with the powers of a Texas non-profit corporation. Neither the Certificate of Formation nor Bylaws will for any reason be amended or otherwise changed or interpreted so as to be inconsistent with this Declaration. Section 5.2 Membership. Any person or entity becoming an Owner shall automatically become a Member of the Association. Membership shall be appurtenant to and shall run with the property interest which qualifies the Owner thereof for membership, and membership may not be severed from, or in any way transferred, pledged, mortgaged, or alienated except together with the title to the said property interest. During the Developer Control Period, the Association will have two (2) classes of members: Class A and Class B. The Class A Members will be all Owners other than Developer and Developer's Affiliates, The Class B Members will be Owners who are the Developer or Affiliates of Developer. After the Developer Control Period, there will be one (1) class of members which will consist of all Owners. Section 5.3 Voting Rights. During the Developer Control Period, the right to cast votes, and the number of votes which may be cast on all matters to be voted on by the Members shall be calculated as follows: (a) Class A: The Owner (excluding Developer and Affiliates), whether one or more, of each Lot within the Development will have one vote for each Lot so owned. (b) Class 8: Developer and its Affiliates will have one hundred (100) votes. (00101451 5) Page 13 m„mno.,.......«.w.e,...wne,«.I— .�.....,........ v. ... ,,,— -.=...w..............w..a. n..r.—...w+.+w.r. ,em.�.,,.»...—. .-,.,.»...,., ._...mot.....,. « .. Doc Ok Val Ps 01084017 OR 10036 37 After the Developer Control Period, each Owner shall have one (1) vote for each Lot such Owner owns within the Development. Section 5A Powers and Authority of the Association. The Association shall have the powers of a Texas nonprofit corporation, subject only to any limitations upon the exercise of such power as are expressly set forth in this Declaration. It shall further have the power to do and perform any and all acts which may be necessary or proper for incidental to the exercise of any of the express powers granted to it by the laws of Texas or by this Declaration. Without in any way limiting the generality of the two preceding sentences, the Association, and the Board acting on behalf of the Association, shall have the following powers and authority at all times: (a) Fines. The power to levy and collect fines for violations of provisions of this Declaration and such fines shall be an amount not less than $100.00 per violation. (b) Rules and Bylaws. To make, establish and promulgate, and in its discretion to amend or repeal and re-enact, such Rules and Bylaws, not in conflict with this Declaration, as it deems proper, to address any and all aspects of its functions. (c) Insurance. To obtain and maintain in effect, policies of insurance which, in the opinion of the Board, are reasonably necessary or appropriate to carry out Association functions. (d) Records. To keep books and records of the Association's affairs. (e) Assessments. To levy Assessments as provided in Article 3 above. (f) Right Enforcement. To exercise the remedies described in this Declaration. (g) Legal and Accounting Services. To retain and pay for legal and accounting services necessary or proper for the operation of the Association. (h) Delegation to Committees. To set up one or more committees as authorized by the Texas Non -Profit Corporation Act, as the same Is amended from time to time. (i) Employees. To engage such employees as may be reasonably necessary in the management of the Association and the performance of its duties. Section 5.5 Maintenance. The Association shall be authorized to landscape, maintain, repair and replace the Association Controlled Common Areas, as the Association deems appropriate. Section 5.5 Association Controiled.Common Areas. (a) Subject to and in accordance with this Declaration, the Association, acting through the Board, shall have the following duties: (1) To accept, own, operate and maintain any Association Controlled Common Areas which may be conveyed or leased to it by Developer or any other party, together with any improvements be conveyed or leased to it by Developer, together with any improvements of any kind or purpose (00101451 s) Page 14 Do. Ok Vol Fs 01084017 OR 10036 38 located in said areas; and to accept, own, operate and maintain all other property, real and personal, conveyed or leased to the Association by Developer, and to maintain in good repair and condition all lands, Improvements, and other Association property owned by or leased to the Association whether by Developer or by other persons. (2) To pay all real and personal property taxes and other taxes and assessments levied upon or with respect to any property owned by or leased to the Association, to the extent that such taxes and assessments are not levied directly upon individual Members of the Association. The Association shall have all rights granted by law to contest the legality and the amount of such taxes and assessments. (3) To execute mortgages, both construction and permanent, for construction of Improvements on property owned by or leased to the Association and to accept land in Association Controlled Common Areas, whether or not improved, from Developer subject to such mortgages or by assuming such mortgages. Financing may be effected through conventional mortgages or deeds of trust, the issuance and sale of development or other bonds, or in any other form or manner deemed appropriate by the borrower, whether Developer or the Association. The mortgage or other security interest given to secure repayment of any debt may consist of a first, second or other junior lien, as deemed appropriate by borrower, whether Developer or the Association, on the improvement to be constructed, together with such underlying and surrounding lands as the borrower deems appropriate. The debt secured by such mortgage or other security instrument may be retired from and secured by the revenues generated by dues, use fees, assessment of Owners, or otherwise, or any combination thereof, as may be deemed appropriate by Developer or the Association, as the case may be, but subject to the limitations imposed by this Declaration. (b) In addition to, and not in limitation of, the power and authority of the Association as set forth in Section 5.4 of this Declaration, the Association, acting through the Board, shall have the power and authority: (1) To grant and convey portions of Association property, including fee title, leasehold estates, easements, rights -of -way, and/or mortgages, to any. person or entity for the purpose of constructing, erecting, operating or maintaining the following: a. parks, parkways or other recreational facilities or structures; b. roads, streets, walks, driveways, trails and paths; c. lines, cables, wires, conduits, pipelines or other means of providing utilities; d. sewers, water systems, stone water drainage systems, sprinkler systems and pipelines; and/or e. any similar public, quasi -public or private improvements. (2) To pay for utilities, services and maintenance for the property of the Association. (OO1014515) Page 15 .a.w......_I-.--- n......,,„wn�:...:...-'......................'a.......... nna.wn..,uw.+..w.....,...a.�n.,...,«...«.«...,.«..-. ..::.. ,..,..x- ,K ..,...�r...,.,rn-.- w,.r......._. Doc Bk Vol Ps 01084017 OR 10036 39 (3) To pay for any other services necessary or proper in the performance of Association functions, and to pay for any other taxes or assessments that the Association or the Board is required to secure or to pay for pursuant to applicable law, the terms of this Declaration, or the Articles or Bylaws of the Association. (4) To own or operate any and all types of facilities for both active and passive recreation. (5) To construct new improvements or additions to Association properties. (6) To enter into contracts with Developer and other persons, on such terms and provisions as the Board shall determine, to operate and maintain any of the Association Controlled Common Areas or to provide any service or perform any function on behalf of Developer or the Association in connection with the purposes of the Association. (7) To acquire and own and to dispose of all manner of real and personal property, whether by purchase, grant, lease, gift or otherwise. Section 5.7 Agreements with City of College Station. The Association may enter into one or more agreements with the City of College Station with respect to the dedication of the Detention Area or any drainage basin, park or other Association Controlled Common Area (excluding Critical Access Drives located on property now owned by the Association) within the Development for municipal maintenance. Section 5.8 Indemnification. The Association shall indemnify any director, officer, or member of a committee duly appointed pursuant to the Certificate of Formation or Bylaws who was, or is threatened to be made a named defendant or respondent in any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative, or Investigative, any appeal in such an action, suit, or proceeding, and any inquiry or investigation that could lead to such an action, suit, or proceeding (hereinafter a "Proceeding") by reason of the fact that such person is or was a director, officer or member of such a committee of the Association, against all judgments, penalties (Including excise and similar taxes), fines, settlements, and reasonable expenses actually incurred by the person in connection with any such Proceeding to the fullest extent permitted by the provisions of the Texas Business Organizations Code that pertain to non-profit corporations, as amended and in effect from time to time. Such authorization of indemnification shall be deemed to be mandatory and deemed to constitute authorization of indemnification and advancement of expenses to the fullest extent permitted by the Texas Business Organizations Code, as amended and in effect from time to time. Section 5.9 Mechanic's and Materialmen's Lien. Each Owner whose Building is repaired, restored, replaced or cleaned up by the Association pursuant to the rights granted under this Declaration, hereby grants to the Association an express mechanic's and materialmen's lien for the reasonable cost of such repair, restoration or replacement that exceeds any insurance proceeds allocable to such repair, restoration or replacement and delivered to the Association. Upon request by the Board, and before the commencement of any reconstruction, repair, restoration, or replacement, such Owner will execute all documents sufficient to effectuate such mechanic's and materialmen's lien in favor of the Association. (00101451 5) Page 16 Doc k Val 01084017 OR 10036 P40 Section 5.10 Control by Developer. NOTWITHSTANDING ANYTHING TO THE CONTRARY, DURING THE DEVELOPER CONTROL PERIOD, DEVELOPER, OR ITS SUCCESSORS OR ASSIGNS, WILL HAVE THE ABSOLUTE RIGHT TO APPOINT MEMBERS OF THE BOARD AND THEIR SUCCESSORS (ANY APPOINTMENT OF A SUCCESSOR WILL BE A DEEMED REMOVAL OF THE BOARD MEMBER BEING REPLACED BY SUCH APPOINTMENT). DEVELOPER, AT ITS OPTION, MAY ASSIGN OR DELEGATE, IN WHOLE OR IN PART, ITS RIGHTS AND POWERS TO THE ASSOCATION, THE BOARD OR AN AFFILIATE PROVIDED SUCH DESIGNATION IS IN WRITING. ARTICLE 6-GENERAL CONSTRUCTION REQUIREMENTS Section 6.1 Construction Approvals. The provisions of this Section 6.1 shall only be effective during the Developer Control Period. The Development is contemplated to have a mix of uses. In order to, among other things, preserve the property values and to facilitate the integrated use of the Development, prior to commencement of construction of any improvements on any Lot or undertaking any on -site pre -development work (such as grading or demolition of existing improvements) or any material alterations to such improvements, the Owner thereof shall obtain the prior written consent of the Developer to each of the following: (a) a site plan showing the location of all proposed improvements to be constructed including, but not limited to, a footprint of any proposed building (which must be in the Building Area), parking areas, drives, and curb cuts; (b) a written description of the Intended use(s) on the Lot in such detail reasonably requested by the Developer; (c) a grading plan for the Lot; (d) a utility plan for the'Lot showing the location of all utilities; (e) elevations and preliminary plans and specifications showing the exterior design, building materials, height, and the size of the improvements, including, but not limited to, the location of any trash dumpsters, compactors or the like (which dumpsters or compactors must be screened from public view in a manner reasonably satisfactory to the Developer); (f) a sign plan showing the location, size, and height of all exterior signage; (g) a parking plan showing sufficient ground level parking spaces in order to comply with the minimum number of parking spaces required by applicable law without variance or shared parking from any other Lot; and (h) a landscaping plan [(a) through (h) above are sometimes collectively referred to herein as the "Plans"], Unless otherwise agreed to by the Developer, all Plans, including without limitation, any diagrams, schedules, specifications and other data required shall be submitted to the Developer in a complete form (sufficient to obtain a shell building permit), and ready for the Developer's consideration and final approval, in the Developer's sole and absolute discretion, prior to the construction of any such improvements on any Lot. The Developer shall respond with its consent or disapproval within thirty (30) days after the submittal of the Plans to the Developer. If the Developer falls to respond to the Plans within said thirty (30) days of submittal, the Plans shall be deemed disapproved. If the Plans are disapproved, the Developer shall note the reasons for such disapproval in reasonable detail. Every Lot shall at all times comply with all covenants, terms, conditions and obligations of this Declaration, including, without limitation, the height, square footage and Building Area restrictions and limits contained in this Declaration. Any approval of the Plans ("Plan Approval") by the Developer does not constitute any warranty or representation that the Plans comply with applicable governmental requirements, or good and prudent design, engineering and/or construction practices. It is the sole responsibility of the submitter of such Plans to the Developer to determine whether the Plans comply with such requirements and practices. Plans that have been approved by the Developer shall be referred to in this Declaration as the "Approved Plans". 100101451 5) Page 17 Doc Sk Val P9 01084017 OR 10036 41 Any Plan Approval given by the Developer shall expire and no longer be effective unless construction is commenced in accordance with the Approved Plans within six (6) months after the date of the Developer's notice of approval. Construction shall not be deemed "commenced" until the completion of the foundation of the Building to be constructed on the Lot. All construction, once commenced, shall be diligently pursued to completion as soon as reasonably possible. No construction shall be abandoned or left partially complete. The Developer shall have the right to enter onto any Lot from time to time to observe the progress of the construction. The Developer shall have the right, but not the obligation, to enjoin any construction that is not in compliance with the Approved Plans and the applicable Owner acknowledges and hereby accepts that such injunctive relief is necessary because the Developer would have no adequate remedy at law for a violation of this Declaration. No improvements of any nature shall be erected, installed, constructed, placed or permitted to remain on any Lot and no exterior portion of any existing buildings, structures, pavement, utility, fences, walls, signs, landscaping or other improvements of any nature shall be altered or remodeled, until Plans therefor, in such detail as provided above, shall have been submitted to and approved in writing by the Developer. Section 6.2 Construction to Proceed in Reasonable Manner; Coordination of Construction. Construction on any Lot shall be undertaken so as not to unreasonably: (a) cause any increase in the cost of construction in the remainder of the Development or on any other Lot; (b) interfere with any other construction being performed in the Development or on any other Lot; (c) interfere with the operations of any other Owner or Permittee within the Development or any other Lot or the rights of any Owner or Occupant as contemplated by this Declaration; or (d) impair the use, occupancy or enjoyment of any Lot by the Permittees of such Lot. All improvements shall be constructed in accordance with the Approved Plans, if applicable. Each Owner shall use all reasonable efforts to cause its or its Occupant's architects, engineers and contractors to cooperate and coordinate its construction with the architects, engineers, contractors and construction work of the other Owners and Occupants to the extent reasonably practicable, so as to achieve the objectives set forth in this Section. Construction trailers and shacks, other temporary improvements and construction materials and equipment shall be located on a Lot only during such times as construction is actively being conducted thereon, and shall be removed within thirty (30) days of written demand from the Association. Section 6.3 Safety Matters; Indemnification. Each Owner and Occupant shall: (a) Take all safety measures reasonably required to protect the persons and property of all other Owners, Permitees and Lots from injury or damage caused by or resulting from the performance of any construction; (b) Indemnify, hold harmless and (at the election of the other Owners) defend the other Owners (with counsel reasonably accepted to the Indemnified Parties) from and against all mechanics', materialmen's and laborer's liens and all costs, losses, expenses and liabilities (including, without limitation, attorney's fees and litigation costs) arising from its construction. Section 6.4 Workmanship; Compliance with Laws and Insurance Requirements. Each Owner and Permittee shall perform its construction, or cause the performance of its construction by its agents, to be undertaken, in a diligent, good and workmanlike manner with the use of first class materials, and in accordance with: (a) the Approved Plans, (b) the terms of this Declaration, (c) all applicable building and zoning laws and all other laws, ordinances, (001014515) Page 18 010240Bk Vol 17 OR 10031, p42 orders, codes, rules, regulations and requirements of all federal, state, municipal, public and governmental agencies and governments, and (d) all orders, rules and regulations of the National Board of Fire Underwriters or any other body now or hereafter constituted performing similar functions in the county in which the Development is located, including, without limitation, the Americans with Disabilities Act and Texas Architectural Barriers Act, and all regulations thereunder. Section 6.5 "Construction" Defined. As used in this Article 6 the word "construction" includes any initial construction, expansion, alteration, restoration, demolition and razing contemplated under this Declaration, and except where otherwise specified, subsequent construction, reconstruction, expansion, alteration, maintenance, repair, restoration, rebuilding, demolition and razing carried on in the Development. Section 6.6 Delivery, Trash, Roof Areas and Utility Connections. Outside storage on the Lots is prohibited. Loading docks and refuse areas shall be screened and located on the least visible side of the Lots and screened from public view. Whenever possible, refuse areas should be accommodated inside the Building located on a Lot. Exterior exposed fire escapes, exposed service stairs or ladders, radio or television towers and antennae or satellite dishes or receivers are not permitted without the prior written approval of the Association and any appropriate governmental entity. All utility lines shall be underground with no exterior visible connections, except for required meters or transformers, which shall be screened from public view. Section 6.7 Set -back Requirements. All Lots shall be subject to the set -back requirements contained in the local zoning ordinances and building codes, without variance. Setback requirements may be affected by the public or private characterization of adjacent roadways and access roads, Section 6.8 Parking. At the time any Buildings are constructed in the Development, the Owner constructing such Buildings shall construct all Owner Controlled Common Areas (including parking lot, driveways, sidewalks, landscaping, lighting and other improvements) necessary to serve such Buildings. Without the prior written consent of the Association which may be granted or withheld in the Association's sole and absolute discretion, no Owner shall allow any Building on its Lot to be constructed or expanded or used by any Owner and Permittee such that the parking areas on the Lot owned by such Owner cannot independently meet the number of parking spaces required by any governmental regulation. Section 6.9 Alterations. During the Developer Control Period, no Owner may, without the prior written consent of Developer, which shall not be unreasonably withheld, conditioned or delayed (i) make alterations or additions to, or build additional stories on a Building; Qi) make material alterations to the exterior structure of any buildings or additions thereto unless such exterior alterations satisfy the provisions of this Declaration applicable to Buildings, or (M) modify, alter or relocate the parking facilities or other Owner Controlled Common Areas as reflected on the Approved Plan for the Lot. ARTICLE 7 —LIABILITY INSURANCE Section 7.1 Insurance for Association Controlled Common Areas. The Association shall maintain commercial general liability insurance (including all endorsements customary for improvements and uses of the types found in the Development) for the Association Controlled Common Areas, with companies licensed to do business in the State (00101451 5) Page 19 Doc Bk Vol Ps 01084017 OR 10036 43 of Texas and with minimum ratings comparable to the minimum policyholder rating of "A" and a financial rating of at least W in Best's Insurance Reports, providing coverage in amounts determined from time to time by the Association, but in no event less than a combined single limit of not less than Five Million Dollars ($5,000,000.00). Such minimum amount may be increased by Association periodically in accordance with sound property management. The Association may obtain the foregoing insurance as a part of a blanket policy or policies. An Owner, upon the request of the Owners (including the owner of Lot 14), will be named as additional insured on such policy. Upon request, the Association shall provide an Owner (including the owner of Lot 14), with a certificate of insurance evidencing the type and amount of the insurance coverage required. Ail insurance shall be carried with financially responsible insurance companies authorized to do business in the State of Texas. Section 7.2 Owner Insurance. Each Owner must procure and maintain, or cause the Occupant(s) of Owner's Lot to procure and maintain, at all times, at its sole expense, a policy or policies of commercial general liability insurance insuring against all risks of personal injury, death, and property damage occurring during the policy period, having a reasonable combined single limit of liability, of not less than $5,000,000 and must include products and completed operations liability coverage, and broad form liability endorsement and all other endorsements customary for the improvements and uses on the Lot; and a fire and extended coverage policy in an amount equal to not less than the full replacement cost of all improvements on such Owner's Lot. The Association must be named as additional insured on all liability policies and copies of all insurance policies, if any, must be delivered to Association upon request. An Owner may obtain the foregoing insurance as part of a blanket policy or policies. All insurance shall be carried with financially responsible insurance companies authorized to do business in the State of Texas, with minimum ratings comparable to the minimum policyholder rating of "A" and a financial rating of at least W in Best's Insurance Reports. ARTICLE 8 — DAMAGE AND DESTRUCTION Section 8.1 In the event that any part of the Owner Controlled Common Areas Is destroyed or damaged by fire, casualty or event of force majeure, the Owner of the affected property, at its sole expense, forthwith shall clear and restore such area to its condition immediately prior to such destruction or damage. In the event that any part of the Association Controlled Common Areas is destroyed or damaged by fire, casualty or event of force majeure the Association, at Its sole expense, forthwith shall clear and restore such area to its condition immediately prior to such destruction or damage. Section 8.2 In the event that any part of a Building or improvements on a Lot is damaged by fire, casualty or event of force majeure, the affected Owner thereof shall either promptly restore or raze same. ,If the damaged Building or improvements are razed, such Owner shall, at its sole expense, raze the damaged structures, remove all debris, pave such area for parking or landscape such area as approved by the Association and install adequate lighting and storm water drainage. Any area restored in this manner shall be maintained at the sole cost and expense of the Owner of such Lot. Section 8.3 in the event that any part of the Common Areas is taken for any public or quasi -public use under any governmental law, ordinance, or regulation, or by right of eminent domain, or sold to the condemning authority under threat of condemnation (herein, a "Condemnation"), the Owner of the affected property, in the case of Owner Controlled (omo1451 s) Page 20 Doc Bk Vol F'9 01084OU OR 10036 44 Common Areas, or the Association, in the case'of Association Controlled Common Areas, shall, at its sole expense, forthwith restore such area as much as practicable to provide the same approximate configuration, size, location and number of all light standards, driveways, walkways, parking spaces and curb cuts to adjacent roadways existing prior to the condemnation. Any award on account of a Condemnation of the Owner Controlled Common Areas located on such Lot affected by the condemnation first shall be used in the restoration of same, and any claim to the award made by an Owner, or Occupant of such Owner's Lot, shall be expressly subject and subordinate to its use in such restoration. ARTICLE 9 — COVENANTS AND RESTRICT1012S Section 9.1 Restrictions on Use of Common Areas. Without the prior consent of the Association, no part of the Common Areas shall be used to conduct a sale or otherwise place inventory, merchandise or display items. Nothing set forth herein shall prohibit the, operation of an outdoor patio area or terrace for restaurant purposes otherwise permitted herein in accordance with applicable law and the REA, if approved in writing by the Association. Section 9.2 Easements Not Benefitting Development The Common Areas shall not be encumbered by any easement, right of way, license or other servitude for the purpose of parking on or vehicular passage across the Common Area benefiting property outside of the Development without the prior written consent of the Association. During the Developer Control Period, the parking lot layout, including parking spaces, aisles, driveways and walkways, as reflected on the Approved Plan for the Lot, may not be altered, removed or constructed in a manner different than that which is shown on the Approved Plan for the Lot without the prior written approval of the Developer. Section 9.3 Subdivision of Lots. No Lot may be subdivided or the Lot line between two Lots adjusted without the prior written consent of the Association. If the Association consents to such subdivision or adjustment, all rights and restrictions in this Declaration applicable to such Lot(s) before such subdivision or adjustment shall remain applicable to the resulting Lot(s). For any Lot ("Parent Lot°) divided into more than one Lot, the owners of the resulting subdivided lots shall equally share the number of votes of the Parent Lot. The Owner(s) of the subdivided or adjusted Lot(s) shall give notice to the Association of the land area in the resulting Lot(s) and the legal description thereof. Section 9A Environmental Requirements. Each Owner covenants and agrees to comply with the following environmental requirements: (a) Each Owner shall comply with, and shall pay all costs incurred in complying with, any Environmental Law then in effect and the environmental state, condition and quality of its Lot, including, without limitation, the performance of and payment for any environmental cleanup work (which shall mean any cleanup, remediation, removal, construction, alteration, demolition, renovation or installation that is required in connection with Hazardous Materials installed, used, stored, handled or located on such Owner's Lot or disposed of from such Owner's Lot in order to comply with any Environmental Law) and the preparation of any closure or other required plans, excluding, however, any costs related to Hazardous Materials on the such Owner's Lot caused by the removal, storage, transportation and disposal of Hazardous Materials brought toororasr e) Page 21 Doc Bk Vol Pe 01084017 OR 10036 45 upon, generated, produced, kept, or used in or about such Lot by another Owner, Occupant or Permittee (such Owner, Occupant or Permittee, as applicable, who has brought upon, generated, produced, kept, or used Hazardous Materials in or about another Owner's Lot being referred to herein as the "Responsible Party"). Each Responsible Party shall comply with, and shall pay all costs incurred in complying with, any Environmental Law then in effect with respect to its Hazardous Materials, including, without the performance of and payment for any environmental cleanup work (which shall mean any cleanup, remediation, removal, construction, alteration, demolition, renovation or installation that is required in connection with Hazardous Materials installed, used, stored, handled or located on a Lot by such Responsible Party in order to comply with any Environmental Lew) and the preparation of any closure or other required plans. (b) EACH OWNER SHALL AND HEREBY DOES AGREE TO INDEMNIFY, PROTECT, DEFEND AND HOLD HARMLESS ANY OTHER OWNER AND ITS PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, CONTRACTORS AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL, CLAIMS, JUDGMENTS, DAMAGES, PENALTIES, FINES, TAXES, COSTS, LIABILITIES, LOSSES AND EXPENSES ARISING AT ANYTIME DURING OR AFTER THE TERM OF THIS DECLARATION AS A RESULT OF OR IN CONNECTION WITH: (1) SUCH OWNER'S BREACH OF ANY COVENANT CONTAINED IN THIS SECTION 9.4; OR (II) THE REMOVAL, STORAGE, TRANSPORTATION OR DISPOSAL OF HAZARDOUS MATERIALS BROUGHT UPON, GENERATED, PRODUCED, KEPT, OR USED IN OR ABOUT SUCH OWNER'S LOT BY SUCH OWNER OR ANY OF SUCH OWNER'S PERMITEES. . Section 9.5 Remedies. The remedies for breach of any of the restrictions set forth in this Article 9 shall be cumulative, not exclusive, and shall include injunctive relief. ARTICLE 10 — DEFAULT Section 10.1 Should any Owner breach any of its obligations hereunder and such breach continue for a period of thirty (30) days after its receipt of written notice (unless a longer or shorter period is expressly provided herein), any other Owner or the Association (the 'Curing Party") shall be entitled to cure such breach in addition to all remedies at law or in equity, which shall be cumulative, not exclusive, and shall include injunctive relief, provided that such injured party furnishes prior written notice to the defaulting party, except that no notice is required should the breach create an emergency that interferes with a right granted hereunder. All expenses required to cure the breach shall be paid by the defaulting party within thirty (30) days after receipt of written evidence confirming the payment of such expenses. Section 10.2 Any sums remaining unpaid hereunder shall accrue interest calculated at twelve percent (12%) per annum or at the highest annual interest rate allowed by law, whichever is less. Section 10.3 A Curing Party shall have a lien on the property of a defaulting Owner to secure payment of the monetary obligations attributable to such defaulting Owner's property, (00101451 5) Page 22 Doc Bk Val P'9 n1n84017 OR 10036 46 except the Association shall have such lien without regard to whether the Association has cured the default. Acceptance of title to part of the Development grants to the Curing Party a power of sale of the aforementioned lien through a trustee designated in writing by the Curing Party. The Curing Party is authorized to enforce the lien as provided in Section 3.7. Section 10.4 In the event of litigation by reason of this Declaration, the prevailing party in litigation shall be entitled to recover reasonable attorney's fees in addition to all other expenses incurred by such litigation. Section 10.5 An Owner is permitted to assign its rights under this Declaration to a tenant for a period of time not to exceed the term of the lease between the Owner and such tenant. ARTICLE II —MUTUAL WAIVER OF SUBROGATION RIGHTS Notwithstanding anything to the contrary contained herein, each Owner and such Owner's Occupants hereby releases the other Owners and such Owners' Occupants and waives claims arising in any manner in its (the "Injured Party's") favor against the other Owners and such Owners' Occupants (including rights of subrogation of any insurer) for loss or damage to the Injured Party's property occurring within or resulting from the use of the Common Areas, REGARDLESS OF WHETHER SUCH LOSS OR DAMAGES IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR SOLE NEGLIGENCE OF THE OTHER OWNER OR SUCH OWNER'S OCCUPANTS, to the extent the loss or damage is of the type covered by insurance carried by or required by this Declaration to be carried by such Injured Party. All insurance policies carried by the Owners (or the Owner's Occupants as allowed herein) shall provide for waivers of any right of subrogation that the insurer of such party may acquire against another party with respect to any insured losses. ARTICLE 12 — MISCELLANEOUS PROVISIONS Section 12.1 Amendment. During the Developer Control Period, this Declaration may be amended by Developer with the consent of Developer's lender which will not be unreasonably withheld, conditioned or delayed. Thereafter, this Declaration may be amended by the Owners of a majority of Lots. A written instrument of amendment must be executed and acknowledged by all of the required Owners and recorded in the Official Records of Brazos County, Texas. The lien of any recorded deed of trust or mortgage or deed of trust or mortgage granted or created by an Owner of a Lot is subordinated to this Declaration and any and all amendments andlor restatements of the Declaration and no signature by or consent of any Lienholder is required to effect such subordination. This Declaration may not be terminated, in whole or in part, except with the consent of the Developer (if within the Developer Control Period) and Owners of seventy-five percent (75%) of the Lots, and then only by written Instrument duly executed and acknowledged by the Developer (if within the Developer Control Period) and all of the required Owners and recorded in the Official Records of Brazos County, Texas. Notwithstanding anything in this Declaration to the contrary, any amendment which has the effect of reducing the limits of liability or other insurance requirements provided for in Sections 7.1 and 7.2 shall require the prior written consent of the owner of Lot 14 which written consent may be withheld in the sole discretion of the owner of Lot 14 and any such amendment to Sections 7.1 or 7.2 shall be void and without any effect without such prior written consent. The owner of Lot 14 is an intended third party beneficiary of the preceding sentence and shall have the right to enforce the rights and benefits provided for in connection with the preceding sentence. (00101451 s1 Page 23 Doc Ek Val P9 01084017 OR 10036 47 Section 12,2 No Partnership Created. This Declaration shall not create an association, partnership, joint venture or a principal and agency relationship between any party hereto or their tenants or licensees. Section 12.3 No Waiver. No waiver of any provision hereof shall be deemed to imply or constitute a further waiver thereof or any other provision set forth herein. Section 12.4 Severability. Should any provision hereof be declared invalid by a legislative, administrative or judicial body of competent jurisdiction, the other provisions hereof shall remain in full force and effect and shall be unaffected by same. Section 12.6 Notices. All notices and approval required or permitted under this Declaration shall be served by certified mail, return receipt requested, to a party at the Iasi known address of its principal place of business. Date of service of notice or approval shall be the date on which such notice or approval is deposited in the Post Office of the United States Postal Service or any successor governmental agency. Section 12.6 Matters of Record. All of the provisions hereof are made and accepted subject to any and all encumbrances, reservations, conditions, covenants, easements and restrictions, if any, now of record in the Official Records of Brazos County, Texas, and to all zoning laws, regulations and ordinances of municipal and/or other governmental authorities, if any, affecting the use thereof. All liens and encumbrances affecting the Development which are created on or after the date of this Declaration shall be, and shall be made, expressly junior and subordinate to the rights created under this Declaration. Section 12.7 Duration. Except as otherwise provided herein, the term of this Declaration shall be for a period of sixty-five (65) years ("Primary Period") from the date hereof. Notwithstanding the foregoing, upon the expiration of the Primary Period, the tens of this Declaration shall automatically renew for successive periods of ten (10) years each (each such period being referred to as an "Extension Period") unless, at least ninety (90) days prior to the date of expiration of the Primary Period or Extension Period then in effect, the Owners of seventy-five percent (75%) of the Lots consent to the termination of this Declaration and deliver to the other Owners in the Development written notice of termination, in which event, the Declaration shall automatically expire at the end of the Primary Period or Extension Period then in effect. Section 12.8 Entire Agreement. This Declaration contains the entire agreement between the parties concerning the subject matter hereof and there are no other terms, expressed or implied, except as contained herein. Any statement, representation or promise made by either party or an agent or employee thereof which is not contained herein shall be null and void. Section 12.9 Declaration for Exclusive Benefit of Parties. This Declaration is not intended to confer any benefit upon any Person other than an Owner, an Owner's permitted assignee under Section 10.5, the Association or the Developer. No Person other than an Owner, an Owner's permitted assignee under Section 10.5, or the Association shall be entitled to make any claim against any Owner or its property under or by virtue of this Declaration or any provisions hereof. toor01451 51 Page 24 Doc Sk Vol Ps 010"017 OR 10036 4E Section 12.10 Release of Parties; Assumption. If an Owner owning a fee simple interest in a Lot (the "Transferring Party") sells, transfers or otherwise conveys its Lot so that after such conveyance the Transferring Party is no longer, either alone or with other Persons, an Owner (excluding any ground lessee), then such Transferring Party shall be released from all further future liabilities accruing under this Declaration after the date of such transfer. Section 12.11 Estoppel Certificates, Within ten (10) days of written request of an Owner or the Association, the requested Owner, shall execute, acknowledge, and deliver to the requesting Owner or Association an instrument stating, if the same be true, that there are no amendments hereof (or stating what amendments there may be), that the same is then in full force and effect and that, to the best of its knowledge, there are no offsets, defenses, or counterclaims with respect to the payment of any sums owing hereunder or in the I. performance of the other terms, covenants, and conditions hereof to be performed, and that as of such date no default has been declared hereunder and such other matters as may be reasonably requested. Section 12.12 Governing Law. THIS DECLARATION, AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED BY THE LAW OF THE STATE OF TEXAS (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE UNITED STATES FEDERAL LAW. Section 12.13 Sole and Absolute Discretion. Notwithstanding anything herein to the contrary, whenever a party to this Declaration is entitled to exercise its "sole and absolute discretion", such discretion may be exercised by that party for any reason or for no reason, whether such discretion is arbitrary, uncontrolled or unreasonable. Any party's exercise of its "sole and absolute discretion" shall be final and shall not be subject to appeal or be subject to adjudication by a court of law, arbitration, mediation, or otherwise. Except as otherwise expressly provided, whenever in this Declaration, the Developer or the Association has the right to approve or consent to a matter, such approval or consent may be given or withheld in Developer's sole and absolute discretion. Section 12.14 Removal of Property. At any time and from time to time, Developer shall have the right from time to time and as many times as Developer, in its sole and absolute discretion, determines, without the joinder or consent of the Owners, to remove portions of the Development from all or part of the provisions of this Declaration. The removal shall be accomplished by the filing in the Official Records of Brazos County, Texas an instrument describing the portion of the Development to be removed, thereby freeing such portion of the Development from all or a part of terms of this Declaration, as amended from time to time, as designated in such filing. Section 12.15 Time of Essence. Time is of the essence. Unless otherwise specified, all references to °days" shall mean and refer to calendar days. Business days shall exclude all Saturdays, Sundays and federal legal banking holidays. In the event the date for performance of any obligation hereunder shall fall on a Saturday, Sunday or federal legal banking holiday, then that obligation shall be performable the next following regular business day. Section 12.16 No Obligation to Enforce. The failure by Association or Owner to enforce any provision of this Declaration shall in no event subject Association or Owner to any claims, liability, costs or expense; it being the express intent of this Declaration to provide Association with the right (such right to be exercised at its sole (001014515) Page 25 Doi_ Bk Vol Ps 01784017 DR 10036 49 and absolute discretion), but not the obligation to enforce the terms of this declaration for the benefit of any Owner(s) of any Lot(s) in the Development. Section 12.17 No Warranty. While the Developer has no reason to believe that any of the restrictive covenants or other terms or provisions contained in this Declaration are or may be invalid or unenforceable for any reason or to any extent, Developer makes not warranty or representation as to the present or future validity or enforceability of any such restrictive covenants, terms or provisions shall assume all risks of the validity and enforceability thereof and, by acquiring the Lot, agrees to hold Developer and the Association harmless therefrom. The Developer shall not be responsible for the acts or omissions of any individual, entity, Association or other Owners. Section 12.18 Contra Proferentem. This Declaration is not to be construed more or less favorably between the parties by reason of authorship or origin of language. Section 12.19 No Obligations on Lot 14. Nothing contained in this Declaration is intended to create any obligations or burdens on Lot 14 or the owner of Lot 14. Section 12.20 No Impact on HEB Parcel. Nothing contained in this Declaration is intended to change the rights and obligations of the owner of the HEB Parcel under the REA or to create any obligations or burdens on the HEB Parcel or the owner of the HEB Parcel. Section 12.21 Exhibits. All Exhibits referred to in this Agreement are attached hereto and incorporated herein by reference for all purposes. EXHIBITS: Exhibit A-1: CSMP Tracts Exhibit A-2: Development Drawing Exhibit A-3: Detention Area Exhibits B-1 and B-2: North Lots Exhibit C-1: Area D North [SIGNATURES ON FOLLOWING PAGE] (00101451 s) Page 26 CSMP: Doc Bk Vol Ps 01084017 OR 10036 50 COLLEGE STATION MARKETPLACE, L.P., a Texas limited partnership By: College Station Marketplace GP, LLC, a Texas limited liability company, as General Partner By: nd einer I . President THE STATE OF TEXAS COUNTY OFHARRIS This instrument was acknowledged before me on this y g day of February, 2011, by Andy Weiner in the capacity of President on behalf of COLLEGE STATION MARKETPLACE GP, LLC, a Texas limited liability company, as General Partner of COLLEGE STATION MARKETPLACE L.P., a Texas limited partnership. EMILY CRAFT •� `aw? Notary Public. State of Yexas y� My Commission Expires NOTARY PU ' LIC, STATE OF TEXAS 9,1115 .; December 10. 2013 (0010145t 3) Page 27 Doc III< Vol Ps 01084017 OR 10035 51 CONSENT AND SUBORDINATION OF LENDER FIRST VICTORIA NATIONAL BANK ("Lender"), owner and holder of certain liens for the benefit of Lender recorded in the Official Records of Brazos County, Texas (collectively, the "Security Instruments") (i) hereby consents to the foregoing Declaration of Supplemental Easements, Covenants and Restrictions ("Declaration") to which this Consent and Subordination of Lender is attached and the imposition of the Declaration on the real property encumbered by the Security Instruments; and (ii) confirms that from and after this date, the provisions of the Declaration will be superior to all liens in favor of Lender and Lender's rights under the Security Instruments. Q91,19M FIRST VICTORIA NATIONAL BANK By: Yl' _ Name: Title: S V. P. I STATE OF TEXAS COUNTY OF This_ instrument was acknowledged before me on the I {� day of February, 2011 by mn C Ton AS VC _ of FIRST VICTORIA NATIONAL BANK, a nati nal banking association, on behalf of said association. ------------- JEANNE D SNOW i . Nary Public STATE OF TEXAS My Comm. Exp. 01/1 F (00101451 S) Page 28 Doc Bk Val Ps 01084017 DR 10036 52 H:\lmd Projeoie R2\041\SW�m Nobwt A-54u14ftt Pia-\dw9\fAbRe\FWd Nat"\Suppfl a (11 REA\5hI6H A-1.dwy 2/1/2011 TS0:24 PM CST 9GALE: ,"_400• ,� EXHIBIT A-1 dp 04 m L6 d i z / L7 } L9 I 3 1 t 28.77 ACRESr OiS !� O FOUND L11 m COMM L12 w L3 �� L2 r ewv aoD CAP FOUND L7 CONCOM AU'. STATE HIGHWAY NO. 40-R.O.W. VARIES (W. D. FITCH PARKWAY) UNE TABLE. UNE BEARING DISTANCE LI S48'59'02'W 332.44' L2 S50'47'22"W 974,50' L3 S53'41'54'W 177.54' L4 N27'50'14"W 449.67' L5 N4426'29'E 324,06' L6 S43'44'24E 20.00' L7 N46'15'36'E 32.50' CURVE TABLE. L8 S44'59'12'E 304.57' CURVE LENGTH RADIUS DELTA CHORD BEARING L9 N45'00'48"E 17.80' CI 51.56' 30.00' 9827'52" N 77'04'10"W�45.44' L10 SBS'45'33'E 348.56' C2 925.36' 733.54' 72'16'44' N 0817'59"E-885.21' Lit SO494'27'W 49.44' C3 55.69' 50,00' 83'48'43" N 76'20'510E,52.85' L12 S85'4457'E 52.43' C4 146.44' 300.00' 27'58'04' S 57'43'280E�144.99' L13 S41'00'68"E 280,00' C5 32.91' 150.00' 12109' S 79'2B'23'E-32.85' KLWG EN N a UWVN0 I o� b Doc Bk Vol Ps 01084017 DR 10036 53 Exhibit A-1 - 28.77 Acres Tourer Point Robert Stevenson Survey, A-54 College Station, Brazos County, Texas Field notes of a 28.77 acre tract or parcel of land, lying and being situated in the Robert Stevenson Survey, A-54, College Station, Brazos County, Texas, and being part of the 80.42 acre - Tract One, and all of the 4.65 acre - Tract Three described In the dead from Timothy J. Crowley to College Station Market Place, L.P., recorded In Volume 8274, Page 111. of the Official Records of Brazos County, Texas, and said 28.77 acre tract being more particularly described as follows: BEGINNING at a W Iron rod found marking the south comer of Lot 14, Block 3, Tower Point Subdivision, Phase 4, according to the plat recorded In Volume 9699, Page 156, of the Official Records of Brazos County, Texas, said %" Iron rod also lying in the northwest right-of-way line of State Highway No. 40; THENCE along the northwest right-of-way line of the beforementioned Stale Highway No. 40, as follows: S 480 59'D2" W fora distance of332.44 feet, a concrete dght-of- way marker bears S 480 4T W - 0.25 feet, S 50" 47' 22" W for a distance of 974.60 feet to a concrete right- of-way market found, S 530 41' S4" W for a distance of 177.54 feet to a''/0" Iron rod found marking the most southerly east comer of Arrington Road - 80'wide right-of-way, as shown on the Right-of-way Dedication, Arrington Road and 80' Decatur Drive, according to the plat recorded In Volume 71100, Page 12, of the Official Records of Brazos County, Texas, said h" Iron rod also being the beginning of a transition curve, concave to the north, having a radius of 30.00 feet; THENCE along the east and northeast dghtof-way line of Arrington Road, as follows: Westerly along said curve, for an am length of 51.56 feet to a W Iron rod found marking the end of this transition curve, the chord bears N 770 04' 100 W - 46.44 feet, ' N 270 50' 14" W for a distance of 440.67 feet to a %" Iron rod found marking the beginning of a curve, concave to the east, having a radius of 733.54 feet, Northerly along said curve, for an am ianglh of 921i,36 feetto a Va" iron rod found marking the end of this curve, the chord bears N 08017' 59" E - 865.21 feet, N 440 26' 29" E for a distance of 324.00 feet to a iron rod found marking the beginning of a trattsl9on curve, concave to the (ttansitioning around a turnabout), having a radius of 50.00 feet, Northeasterly along said curve, foran arc length of 65.69 feet, To a W Iron rod found marking the beginning of a compound curve, concave to the south, hevidd a radius of 300.00 feet, the chord beats N 760 20' 5V E - 62.65 feet, Easterly along said curve, for an arc length of 146.44 feet to a'%" Iroh rod found marking the and of this curve, this chord bears S 576 43' 20" R- 144,99 feet, S 430 44' 24" E for a distance of 20.00 feet to a A0 Iron rod found, -. vn"cneu 0NY,W, Tn zoo ie Doi_ 8k Vol Fs 01084017 OR 10036 54 Exhibit A-1 -28.77 Acres Tower Point Robert Stevenson Survey, A-54 College Station, Brazos County, Texas Continued - Page 2 N 46' 15' 3e' E for a distance of 32.50 feet to a 60d nail set; THENCE S 440 69' 12" E fora distance of 304.57 feet to a 80d nail set In the. northwest line of Lot 28, Block 3 - 1.68 acres, according to the plat recorded In Volume 9690, Page 155. of the Official Reoorda of Brazos County, Texas; THENCE N 450 00' 48" E for a distance of 17.80 feet to a BOd nail found marking the northwest comer of the beforemenlioned Lot 28, Block 3, same being the beginning of a curve, concave to the north, having a radius of f 50.00 feet; THENCE along the north line of the beforementloned Lot 28, Block 3, as follows: Easterly along said curve, for an arc length of 32.91 feet to a BOd nail found marking the end of this curve, the chord bears S 796 28' 23" E - 32.85 feet, 8 854 45' 33" E for a distance of 348.5e feet to an "X" found in concrete marking the common comer between the said Lot 28,. Block 3, and the beforementioned Lot 14, Block 3; THENCE S 040 14' 27" W along the common line between the beforementioned Lot 28, Block 3 and Lot 14, Block 3, for a distance of 49.44 feet; THENCE along the southwest lines of the beforementioned Lot 14, Block 3, as follows: S 860 44' 57" E S410W680E Nrenereo oznruz T wr+e�arawrwH,4r . zH.YTee.wpa for a distance of 52.43 feel to a h" Iron rod found,, for a distance of 280.00 feet to the PLACE OF BEGINNING, containing 28.77 acres of land, 3 or less. Surveyed: February, 2011 By: p�Mi�Ilng�RAL.S003 mmmY HFYAe, TFIUH 3oP(o Doc Bk Vol Pe 01084017 OR 10036 55 Al Z32:30 PM CST SCALE: 10. EXHIBIT A-1 (Continued) t r !0.24EgACC�RMI L9 L8 02 J L8 "x u1 t FOUND 1 C4 V STATE HIGHWAY NO. 40-R.O.W. VARIES (W. D. RICH PARKWAY) LINE TABLE; LINE BEARING DISTANCE L7 S4719'17'E $07.62' L2 S3S'33'260E 651.67' L3 S51'26'34"W 182.22' L4 SO414'27'W 53.00' L5 N85'4533"W 79.05' L6 S4500'48"W 17.80' L7 N44'69'12'W 304.57' 1.8 N4615'36'E 32,50' L9 N43'4414'W 20.90' LIO N4345'05"W 115.32' 1-11 N80'34'18'E 312.05' L12 N15'46'35'W 445,00' L13 N42'4643'E 27.13' CURVE TABLE, CURVE LENGTH RADIUS DELTA CHORD BEARING C1 164.06' 514.00' 181714- S 60'35'11"W,163,36' C2 683.18' 443,00' 88'21'33' S 25'33'02'W�617.46' C3 165.25' 414.00' 2252'12" S 0711'39"E-154.18' C4 32.91' 150.00' 12'3499" N 79'28'23"W,32.85' C5 01.71' 437.00' 8'05'26' N 47'4r48"W-61.66' C6 65.90' 84,00' 58'3W22' N 22.32'52'W 82.20' 07 122.76' 91.00' 7717'34' N 31'53'58'W�113.66' CS 179.58' 384.00' 28'47'39" N 57'08'55"W-177.94' CO 506.36' 380.00' 76'20'53' N 22'23'62"E-469.72' CID 204.05' 200.00' 58'27'18" N 13'27'040E-195.31' 4oF b ts u !PFNNn".w.."i+`.'"`^wh'.T+NM.P, M.M+mM..Rec+'.a.�..v�'^+Mwv. V+.f»w✓e.w+.no+.neV".e�Y.t^w+urr!r nnR.µ.4.•vrvw Ww.Iroa.M+w.w.a.ww..........._�.....�.. ......... Doc ek Vol Ps 01084017 DR iO036 56 Exhibit A-1 Continued - 20.49 Acres Tower Point Robert Stevenson Survey, A-54 College Station, Brazos County, Texas Field notes of a 20.49 acre tract or parcel of land, lying and being situated in the Robert Stevenson Survey, A-64, C011690 Station, Brazos County, Texas, and being part of the 89.42 acre • Tract One, described In the deed from Timothy J. Crowleyto College Station Market Place, L.P;, recorded In Volume 8274, Page 111. of the Official Records of Brazos County, Texas, and said 20.49 acre tract bong more particularly described as follows: BEGINNING at an "X' found In concrete at the north comer of Lot 12, Block 3, Tower Point Subdivision, Phase 3, accdrding to the plat recorded in Volume 0497, Page 120, of the Official Records of Brazos County, Texas, said "X" also lying In the southwest dghtat-way line of Stale Highway No. 6; THENCE along the northwest line ofthe beforementionad Lot 12, Block 3, same being the southeast line of 40'wide and 28' wide private access and public utility easement as follows: S 510 25' 34" W for a distance 0f 162.22 feet to a %" iron rod found at the beginning of a curve, concave to the northwest; having a radius of 514.00 feet, Southwesterly along said curve, for'an arc length of 164.06 feet a''/a" Iron rod harking the beginning of .a reverse curve, concave to the Southeast having a radius 443.00 feet, the chord bears S 60" 36' 11' W - 163.36 feet, Southwesterly along said curve for an arc length of 683.18 feet to a 'A' Iron roil marking the beginning of a reverse curve, concave to the west, having a radius of 414.00 feet, the chord bears S 260 33'02" W - 817.40 feet, Southerly along said curve, torten arc length of 105.25 feet, the chord bears S 070 11' 39" E - 104.16 feet, S 040 14' 27" W for a distance of 53.00 feet and corner In the north Ilne!of Lot 28, Block 3, according to the final plat of Lot 28, Block 3, Phase 3, Tower Point Subdivision, recorded In Volume 9609, Page 155, of the Official Records of Brazos County, Texas; THENCE along the north and northwest Imes of the beforementionad Lot 28. Block 3.1.68 acres, as follows: N 85A 45' 33" W for a distance of 79.05 feet to the beginning of a curve, concave to the north having a redlus of 150.00 feet, Westerly along said curve, for an arc length of 32.91 feet to the northwest: comer of said Lot 28, Block 3, the chord bears N 790 28' 23" W - 32,85 feat, S 450 00' 48" W for a distance of 17.80 feet to a '/s" Iron rod; THENCE N 440 59' 12" W for a distance of 304,57 feet and comer In the northwest line of the beforemenlloned 89.42 acre tract, same being the southeast stubout of the Arrington Road turnabout; THENCE along the east and northeast right-of-way tine of Arrington Road as shown on the plat of Arrington Road -80' wide right-of-way, as shown on the Right- of-way Dedication, Arrington Road and 80`, Decatur Drive, according to the plat recorded in Volume 7800, Page 12, of the Ofticlal Records of Brazos County, Texas as follows: N 46A 15' 36" E for a distance of 32.60 feet to a %" Iron rod found marking the most easterly comer of Arrington Road dght-of-way, KLING ENe1NMINn AM AUAvev,Nn BXYAN. TENAB 5vA Doc Ilk Vol Pa 01084017 OF 10036 57 Ethibit A-1 Continued - 20.40 Acres Tower Point Robert Stevenson Survey, A-64 0011ege Station, Brazos County, Texas Continued - Page 2 N 43" 44' 24" W for a distance of 20.90 feet to a''%4 Iron rod found marking the beginning of a curve, concave to the southwest having a radius of 437,00 feet, Northwesterly along said curve, for an arc length of 61.71 feet to a Ile Iron rod found marking the beginning of a reverse curve, concave to the northeast, having a radius of 84.00 feel, the chord bears N 47" 47' 48" W "61.66 feet, Northwesterly along said curve, for an are length of 85.90 feet to a'h" Iron rod found marking the beginning of a reverse curve, concave to the southwest, having a radius of 91.00 feet, the chord bears N 220 32' 52" W - 82.20 feet, Northwesterly along said curve, for an are length of 122.76 feet, to a %w Iron rod found marling the beginning of a reverse curve, concave to the northeast, having a radius of 384.00 feet, the chord bears N 316 63' 58" W-113.66 feet, Northwesterly along said curve, for an arc length of 179.58 feet to a 'b" Iron rod found marking the and of this curve, the chord bears N 570 08' 55" W-177.94 fast, N 430 45' 05" W for a distance of 115.32 feet to the south comer of the proposed detention pond; THENCE along the east line of the proposed detention pond, as follows: N 600 34' 18" E for a distance of 312.05 feet to a W Iron rod found marking the beginning of a curve, concave to the northwest, having a radius of 380.00 feet, Northerly along said curve, foram arc length of 606.36 feet to a W iron rod found marking the end of this curve, the chord bears N 22" 23' 52" E - 469.72 feet, N 15a 46' 36' W for a distance of 446.00 feet to a W iron rod found marking the beginning of curve, concave to the east, having a radius of 200.00 feet, Northerly along said curve, foram arc length of•204.05 feet to a %" iron rod found marking the and of this curve, the chord bears N 130 27' 04" E-195.31 feet, N 420 40' 43" E for a distance of 27.13 feet to a %" Iron rod found in the southwest rlght-of-way line of State Highway No. 6; THENCE along the southwest fight -of -way line of the beforementioned State Highway No. 6, as follows: S 470 19' 17" E S 38" 33' 26" E Prepared 02103111 W.fl MTovwr A - for a distance of 687,62 foot to a %- Iron rod found, for a distance of 651.67 feet to the PLACE OF BEGINNING, containing 20.49 acres of land, or less. Surveyed: February, 2011 By:�' `-�S M. Kitt g R.P.L.S. No. 2003 111YAN, TENAa ....,..r.r,nn L oR t. Doc Ok Vol Pa 017 OR 10036 sq SCALE: 1"-400r WNE TABLE: LINE BEARING DISTANCE L1 S4799'17'E 212.38' L2 S42'40'43"W 27.13' L3 S15'46'35'E 448.00' L4 S60'3080W 312.05' L5 N43'45'O5"W 407,49' L6 N44'O6'42"W 384.52' L7 N58'34'06'E 8,72' L8 N45'OW31'E 58.92' L9 S40'20'30'E 229.36' L10 N53'49'450E 130,87' Lit N58'11'30'E 119.40' L12 N61'30'38'E 140.18' LI3 N60'13'43'£ 52.08' L14 N351W300E 62.95' L15 N04'05'52'W 43.63' Lib N3337'50'W 37.05' L17 S43101'660E 75.98' Doc Bk Vol Fs 01084017 OR 10036 60 &M23 w my EXHIBIT A-3 KIM CURVE TABLE: CURVE LENGTH RADIUS DELTA CHORD BEARING C7 204.05' 200.00' 58'27'18" S 13'27'040W-195.31' C2 506.36' 360.DO' 76'20'53' S 22.23'S2"W-469.72' C3 107-91' 465,00' 1240'48' N 37'46'18"W-102.70' C4 MAY 455.00' 7727'35' N 05'24'44"E�569.34' C5 164.78' 110.00' 6549'45' S 83'15'23'E,149,80' ) of- 3 Doc 8k Val Ps 01094017 OR 10036 61 Exhibit A-3.22.72 Acres Tower Point Robert Stevenson Survey, A-54 College Station, Brazos County, Texas Field notes of a 22.72 acre tract or parcel of land, lying and being situated In the Robert Stevenson Survey, A-54, College Station, Brazos County, Texas, and being part of the 89.42 acre - Tract One, described In the dead from Timothy J. Crowleyto College Station Market Place, L.P., recorded In Volume 8274, Page 111, of the Official Records of Brazos County, Texas, and part of the 6,643 acre - Tract 1, described In the dead from Spring Creek CS Development, Ltd., to College Station Markel Place, LP., recorded in Volume 6047, Page 207, of the Official Records of Brazos County, Texas, and said 22.72 acre tract being more particularly described as follows: BEGINNING at a Iron rod found marking the common comer between the beforemen6oned 89.42 acre - Tract One and the SA63 acre - Tract 1, said 'A" Iron rod also being In the southeast right-ot-way line o1 Arrington Road -80' wide right- of-way, as shown on the Right-of-way Dedication, Arrington Road and a0' Deratut Drive, according to the plat recorded In Volume 7800, Page 12, of the ONidal Records of Brazos County, Texas; THENCE S 400 20' 30" E along the common line between the beforementioned 89.42 acre tract and the 6.643 acre tract, fora distance of 229.36 feet, to a %" Iron rod found marking the beginning of a curve, concave to the ndr8i, having a radius of 110.00 feet; THENCE through and across the beforementioned 5.643 acrb tract, as follows: Easterly along said curve, for an are length of 104.78 feet lb the and of this curve, the chord bears S 830 16123" E - 149.80 feet, N 530 49' 46" E for a distance of 130.87 feet to a'h' Iron rod found, N 58011' 30" E for a distance of 119:40 feet to a W Iron rod found, N 610 30' 38" E for a distance of 140.18 feet to a'Ile Iron rod found, N 600IT 43" E for a distance of 51.08 feet to a W iron rod found, N 350 3V 30" E for a distance of 62.05 feet to a YV Irdh h5d found, N 040 06' 52" W for a distance of 43.63 feet to a W iron rod found. N 330 37' 60" W for a distance of 31.06 feet to a'h" iron rod found In the southwest dghlof-way line of State Highway No. 6; THENCE along the southwest right-of-way line of the beforementoned State Hlghwdy No. 6, as follows: S 43001' 58" E for a distance of 75.08 feet from which a concrete right-of-way marker found bears S 670 09' 30" E - 0.35 feet, S 47" 19' 17" E for a distance of 212.38 feet to a %" Iron rod found; THENCE along the east line of the proposed detention pond, as follows: KLING ENGINEERING AND SURVEYING ERYAN yew A O-r Doc Bk Vol Fs 01084017 OR 10036 62 Exhibit A-3 - 22.72 Acres Tourer Point Robert Stevenson Survey, A-54 College Station, Brazos County, Texas Continued - Page 2 S 420 40'43" W for a distance of 27A 3 feet to a W iron rod found marking the beginning of curve, concave to the east, having a radius of 200.00 feet, Southerly along said curve, for an arc length of 204.05 feet to a W Iron rod found marking the end of this curve, the chord bears S 13" 27' 04" W-195.31 feet, S 150 46' 35' E for a distance of 448.00 feet to a %" Iron rod found marking the beginning of a curve, concave to the northwest, having a radius of 380.00 feet, Southerly along said curve, for an arc length of 506.36 feet to a Y" Iron rod found maddng the and of this curve, the chord bears S 220 23' 52" W - 469.72 feet, S e0o 34' 18" W for a distance of 312.05 feet and comer in the northeast right-of-way line of the beforementioned Arrington Road; THENCE along the northeast fight -of -way line of the beforementioned Arrington Road, as follows: N 430 45' 05" W for a distance of 407.49 feet, N 440 06' 42" W for a distance of 384.62 feet to a 'h" Iron rod found marking the beginning of curve, concave to the northeast, having a radius of 465.00 fbet, Northwesterly along said curve, for an are length of 102.91 feel to a W Iron rod found marking the and of this curve, the chord bears N 370 46' 18" W - 102.70 feet, N 58" 34' 0e' E for a distance of 8,72 feet to a W Iron rod found marking the beginning of a curve, concave to the east, having a radius of 465.00 feet, Northerly along said curve, foran arc length of e15.13 feet to a %a" Iron rod found marking the end of this curve, the chord bears N O60 24' 44" E - 569.34 feet, N 450 OW 31" E for a distance of 66.02 feet to the PLACE OF BEGINNING, containing 22.72 acres of land, d more or less. Surveyed: February, 2011 By S. M. Kling R.P.L.S. No. 2003 Preps d02N?!ti r..,,e�,rw.,vam �a. rzrb�ryd n.,,.o cn cn,nu wNu wmvfi [No "YM,�s 3of 3 Doc Bk Val Fs 01084017 OR 10036 63 SCALE: 1`-400' 9 EXHIBIT B-1 cAn/R UNE TABLE: LINE BEARING DISTANCE L1 S4719'17"E 697,99' L2 S45'08'31"W 554.71' L3 N43'04'O6"W 422.44' L4 N4340'05E 6,91, LS N4614'41"W 303.41' L6 N43'45'31"E 550.07' 3:03.18 PM CST CURVE TABLE: CURVE LENGTH RADIUS DELTA CHORD BEARING C1 64.55' 40.00' 92"27'48' S 01VW23'E,57.77' Doc 8k Vol Ps 01094017 OR 10036 64 Exhibit B-1 -9.66 Acres Tower Point Robert Stevenson Survey, A-54 College StaOan, Brazos County, Texas Field notes of a 9.56 acre tract or parcel of land, lying and being situated In the Robert Stevenson Survey, Abstract No. 54, College Station, Brazos County, Texas, and being all of the called 6.711 Acre - Tract 2 and all of the called 3.838 acre - Tract 3 described in the deed from Spring Creek CS Development, Ltd. to College Station Marketplace, L.P. as recorded In Volume 8647, Page 207. of the Official Records of Brazos County, Texas, and said 9.56 acre beet being more particularly described as follows: BEGINNING at the%" Iron rod setat the west comer of the beforementioned 3.838 acre tract, same being the north comer of the celled 1,36 acre tract, described In Volume 8437, Page 03, of the Official Records of Brazos County, Texas, and befng in the southeast line of the K. S. Moss Capital Corp - called 1428 acre tract described In Volume 2703, Page 147, of the Official Records of Brazos County, Texas; THENCE N 43e 45' 31" E along the northwest line of the beforemendoned 3.838 acre tract, partially adjacent to a fence, at a distance of 61.7 feet, pass a 2" metal pipe post fence comer, continue on, at a distance of 223.2 feet, pass a 2" metal pipe post fence comer, continue on, leaving said fence, at a distance of 536.50 feet, pass a W Iron red found at a 2" Iron pipe post fence comer, con9dua on, for a total distance of 550.07 feet to a h" Iron rod set at the north comer of the 3.838 acre tract, same being the eastoomerof the 14.28 acre tract In the southwest fight -of -way fine of State Highway No. 6: THENCE S 47e 10' 17" E along the southwest right•of-way line of State Highway No. 6, (right-of-way width vadas) partially adjacent to a fence, for a distance of 097.99 feet to a %" Iron rod set at the beginning of a transition curve to Arrington Road, concave to the west, having a radius of 40.00 feet; THENCE along the northwest right-of-way line of Arrington Road (80, wide right-of-way, see Volume 7800, Page 12, of the Official Records of Brazos County, Texas), as follows: Southeasterly and Southwesterly along said transition curve, for an arc length of 64.55 feet to a lead plug and tack set In concrete sidewalk at the end of this curve, the chord bears S 010 05' 23" E - 57.77 feet, S 45e 08' 31" W for a distance of 564.71 feat to a lead plug and tack set In concrete sidewalk at the south comer of the 5.711 acre tract, some being the east comer of the beforemenlloned 1.36 acre tract; THENCE along the southwest line of the beforemen8oned 5.711 acre and 3.838 acre trdbts, same being the northeast line of the beforemen8oned 1.36 acre tract, as follows: N 43.04' 06" W for a distance of 422,44 feet to a W iron rod set, N 430 40' 05" E for a distance of 8,91 feet to a'A" iron rod set, N 48014' 41" W for a distance of 303.41 feet to the PLACE OF BEGINNING, containing 9.66 acres of land, more or less. Prepared W102111 kpnmdwxPa 81.9.E WPd Surveyed: February, 2011 aV�� S. M. Kling R.P.L.S. No.2003 nurvu MV4NC 1NU ANU SURVEYING eaY"N, TFXA6 � oP y SCALE: 1'-400' LINE TABLE. LINE BEARING DISTANCE L1 S4719'177 203.39' L2 S43'01'56'E 124.58' L3 S33'37'504E 37.05' L4 SO4'05'52E 43.63' L5 S3535'30'W 62.95' LS 56013'431W 52.08' L7 S61'30'38"W 140.18' L8 S5811'30'W 119.40' L9 S53'49'45'W 130.87' L10 N40'2VWW 229.36' 1-11 N45'08'31'E 558.50' EXHIBIT B-2 CURVE TABLE. CURVE LENGTH RADIUS DELTA CI 164.78' 110.00' 85'4945' C2 61.11' 40.00' 8732'12" Doc 8k Vol Fs 01084017 OR 10036 65 ru c" CHORD BEARING N 83'IV23"W-149.80' N 88'5107"E-55.34' 3o P `1 Doc Bk Vol Pg 01084017 OR 10036 66 Exhibit 8-2 - 5.44 Acres Tower Point Robert Stevenson Survey, A-54 College Station. Brazos County, Texas Field notes of a 5A4 acre tract or parcel of land, lying and being situated in the Robert Stevenson Survey, Abstract No. 64, College Station, Brazos County, Texas, and being part of the 5,643 acre -Tract 1, described In the dead from Spring Creek CS Development, Ltd., to College Station Market Place, L.P., according to the deed recorded In Volume 6647, Page 207, of the Official Records of Brazos County, Texas, and said 6.44 acre tract being more particularly described as follows: BEGINNING eta %a" iron rodfound marking the intersection of the southwest tine of the beforementloned U43 acre tract with the southeast right-of-way, line of Arrington Road = 80' wide right-of-way, according to the plat recorded in Volume 7800, Page 12, of the Official Records of Brazos County, Texas, the west comerof the said 5.843 acre tract beers N 400 20' 30" W -10.00 feet; THENCE N 450 OW 310 E along the southeast right-of-way line of the beforementloned Arrington Road - 60' wide right-of-way, for a distance of 558.60 feat to a'/V iron rod found marking lhetransition curve from Arrington Road to State Highway No. 6, sold curve being concave to the south, having a radius of 40.00 feet; THENCE Easterly along the beforementloned transition curve, for an are length of 61.11 feet to a W iron rod found marking the and of this transition curve, in the southwest right-of-way line of State Highway No, 6, the chord bears N 880 54' 37" E - 55.34 feet; THENCE along the southwest right-of-way line of State Highway No. 6, as follows: S 47o t9' 17" E for a distance of 203.39 feel to a %a" iron rod found, S 430 01' 56" E fora distance of 124.69 feet to a'r4" Iron rod set; THENCE S 330 37' 60" E for a distance of 37.05 feet to a'/2" Iron rod set; THENCE S 04° 05' 52" E for a distance of 43.63 feet to a 1W iron rod set; THENCE S 360 35' 30" W for a distance of 02.96 feel to a'A" Iron tod set; THENCE S 60013' 43" W for a distance of 62.08 feet to a''A" iron rod set; THENCE S 610 30' 38" W for a distance of 140.18 feet to e'/a" iron rod set; THENCE S 5801 V 30" W for a distance of 119.40 feet to a % Iron rod get; THENCE S 530 49' 45' W for a distance of 130.87 feet to a % Iron rod set at the beginning of a curve, concave to the north, having a radius of 110.00 feet; THENCE Westerly along sold curve, for an am length of 164.78 feet to a %i' Iron rod found marking the original end of the curve for the beforementioned 8.643 ache tied, the chord bears N 830 15' 23" W - 149.80 feet; THENCE N 400 20' 30" W along the southwest Tina of the beforomendoned 6.043 acre tract, for a distance of 229.36 feet to tae'PLACE OF BEGINNING, containing 5.44 acres of land, mom less. Surveyed: Fepruary, 2011 By KlIng NI R.P.L.$. No. 2 3 Prepared 02104ri1 a.� rp.Q,raNw Pan px - awcroa aeYAN, WAS � OY !TM.,�vm+ae.ea.::r.�.wumYnw,�"NN'w/.fnwv«:+•vy„w.maw.a.exxs�!Mvvwawr{"a,y,yp.q,p,yy�y�♦„�„y,,,y�„yKWn'in4)•r•.*•M%Waw..wrn s+n+.anN.•.Ypm. FaxtAmaNnnu Dnc - Bk Vol f9 01084017 OR 10036 67 &11:08 PM CST S ,•-,�' EXHIBIT C'-1 1 1 STATE HIGHWAY NO. 40-R.O.W. VARIES (W. D. FITCH PARKWAY) LINE TABLE: LINE BEARING DISTANCE LI S44'S9'12'E 304.67' L2 S45'00'48"W 57.99' L3 S44'59'13"E 244.12' L4 $5513'62'E 09.61' L5 S48'SW020W 184.89' L6 S50'47'22'W 895.50' L7 S62'09'46"W 73.42' 1-8 N27'50'14'W 200.17' L9 N44'26'29'E 324.06' L10 S43.44'24•E 20.00' L11 N4695'361E 32.50' CURVE TABLE: CURVE LENGTH RADIUS DELTA CHORD BEARING C1 925.36' 733.54' 7216'44" N 08'17'59"E«865.21' C2 55.69' 50.00' 634W43' N 76'20'510E-52.85' C3 146.44' 300.00' 27.58'04" S 57'43'26'E�144.99' I of 3 zz a Exhibit C-t -17.83 Acres Tower Point Robert Stevenson Surrey, A-64 College Station, Brazos County, Texas Field notes of a 17.03 acre tractor parcel of land, lying and being situated In the Robert Stevenson Survey, A-54, College Station, Brazos County, Texas, and being part of the 89.42 acre - Tract One, and all of the 4.85 acre " Tract Three descdbed in the deed from Timothy J. Crowley to College Station Market Place, L.P., recorded In Volume 8274, Page 111, of the Official Records of Brazos County, Texas, and said 17.63 acre tract being more particularly described as follows: 13EGINNING of a W iron rod found marking the west comer of Lot 28, Block 3, Tower Point Subdivision, Phase 3, according to the plat recorded in Volume 9699. Page 155, of the Official Records of -Brazos County, Texas; THENCE along the southwest line of the beforementioned Lot 28, Block 3, as follows: S 440 59' 13" E for a distance of 244.12 feet to a %" iron rod found, 8 550 13' 52" E for a distance of 99.61 feet to a''A" Iron rod found marking the south comer of said Lot 28, Block 3; THENCE along the centedlne of a proposed 40' wide private access easement and public utility easement, as follows: S 480 59' 02" W for a distance of 184.89 feet, S 500 4T 22" W for a distance of 895.50 feet, S 620 OW 48" W for a distance of 73.42 feet to a r1" iron rod found in the east dght-of-way line of Ardhgton Road according to the Arrington Road - 80' wide right-of-way, as shown on the Right -or -way Dedication, Arrington Road and RV Decatur Drive, according to the plat recorded In Volume 7800, Page 12. of the Official Records of Srazos County, Texas; THENCE along the east and northeast right-of-way Imes of Arrington Road, as follows: N 27" 6V 14' W at a distance of 23.16 feet pass the common comerbetween the beforementlonod 80.42 acre tract and the 4.66 acre bad, continue on, for a total distance of 200.17 feet to a %* iron rod found marking the beginning of a curve, concave to the east, having a radius of 733.54 feel, Northerly along said curve, loran are length of 925.36 feet to a %:" Iron rod found marking the and of this curve, the chord bears N 080 17' 69" 6.866.21 feet, N 440 26' 29" E for a distance of 324.06 feet to a'%" Iron rod found marking the beginning of d transition curve, concave to the (tranalfioning around a turnabout), having a radiuss of 80.00 feet, Northeasterly along said curve, for an are length of 55.69 feet, To a W Iron rod found rharking the beginning of a compound curve, concave to the sou0t, Having a radluri of 300.00 feet, the chord bears N 760 20' 51" E - 52.86 feet, ^-^-� "•� n nnv ov"xenmu "ny1 Tex/.$ Doc 8k Val Pa 01084017 OR 10036 68 aof S Exhibit C-1 -17.63 Acres Tower Point Robert Stevenson Survey, A-64 College Station, Brazos County, Texas Continued - Page 2 Essterlyalong said curve, for an arc length of 146,44 feet to a W iron rod found marking the and of this curve, the chS 430 44' 24' E for oa distance of4 0 00 feet o a W on rod found, N 46015' 35' E for a distance of 32,50 feet to a e0d nail set; THENCE S 44659' 12" E for a distance of 304.67 feet to a 80d nail set In the northwest line of the beforemenfloned Lot 28, Block 3; THENCE beoramentloned Lot 28,8 ock 3, for a0distance of along7.99 feet to the west IPLACE RS Of eOFfBEGINNING, containing 17.83 acres of fend, more ar lass. /Surveyed: February, 2011 C Ste. M. Kling R.P.L.S. No. 2003 PM PAW 02102111 MttgMTOuw PMIC1 I).ELCrgp KLINO ENGINEERING AND SURVEYING 9RYM{ )bus Doc Rk Vol Fa 01084017 OR 10036 69 3oF3 Doc Bk Vol Pg 01084017 OR 10036 70 PREPARED IN THE LAW OFFICE OF: RETURN TO: THE ELLISON FIRM THE ELLISON FIRM P.O. BOX 10103 P.O. BOX 10103 COLLEGE STATION, TX 77842-0103 COLLEGE STATION, TX 77842-0103 File No. 6001.001 Filed for Record in: BRAZOS COUNTY On: Feb 16e2011 at l0:48A As a Recordings Document Number: 01084017 Amount 200.00 RecelPt Number - 407296 By, Betty King STATE OF TEXAS COUNTY OF BRAZOS I herebg certify that this instrument was filed an the date and time etamPad hereon by me and was duly recorded in the volume and Page of the Official Public records of: BRAZOS COUNTY as stamped hereon by me. Feb 16r2011 HONORABLE KAREN NCQUEENe COUNTY CLERK BRAZOS COUNTY BILL d RETURN TO: awns COUABSTRACT COMPANY GFS l NT1 ?4t M15 - COLLEGE STATION, TEXAS Highway 8 &William Fitch L/C: 042.2914 Doc filk Val Ps 01106640 OR 10424 104 After recording, return to: Beth Irving McDONALD'S USA, LLC One McDonald's Plaza Oak Brook, Illinois 60623 COVENANT NOT TO COMPETE Under Ground Lease dated LoQ ("Leese"), COLLEGE STATION MARKETPLACE, L.P., a Texas limited partnership ("Landlor ") whose address Is 520 Post Oak Boulevard, Suite #850, Houston, Texas 77027, leased to MoDONALD'S USA, LLC, a Delaware limited liability company ("Tenant") whose address Is One McDonald's Plaza, Oak Brook, Illinois 60523, a parcel of land described on Exhibit A attached ("Premises'). One of the terms of the Lease states that the Landlord will record certain restrictions against Landlord's remaining lands. - THEREFORE, Landlord covenants and agrees: Landlord covenants and agrees that no properly (other than the Promises) now or hereafter owned, leased or controlled, directly or indirectly, by Landlord or, If Landlord Is a corporation, any subsidiary of Landlord, within the shopping center as shown on Exhibit C (the 'Restricted Property') (whether or not such other property Is subsequently voluntarily conveyed by Landlord) shall, during the term of this Lease, be leased, used or occupied as a restaurant, food service establishment, drive -In, drive-Nnr or walk-up eating facility. The term "restaurant, food service establishment, drive-in, drive-thru or walk-up eating facility' as used in this covenant shall mean any type of food service establishment which serves hamburgers; provided, however, the foregoing restriction shall not prohibit the Incidental sale of hamburgers to We main menu Items by any food service establishment In the Restricted Property. Further provided that Chick-FII-A, and any food service establishment which offers as the primary method of service, for all meal times, food and drink orders taken by and served by a Walter or waitress at The customer's table In excluded from the term "restaurant, food service establishment, drive-in, ddve-thru or walk-up eating facility." Chlll's, Appleboe'a, Bennigan's, Texas Roadhouse and Logan's, as long as such restaurants offer as the primary method of service, for all meal times, food and drink orders taken by and served by a wailer or walbess at the customer's table shall be excluded from the term "restaurant, food service establishment, drive -In, drive-thm or walk-up eating facility." In addition, and not by way of example, the following restaurants operating under the listed trade names, or operating under any successor trade names, are prohibited within the Restricted Property, during the term of this Lease: Burger King Jack -In -the -Box Whataburger Can's Jr. Red Robin Wendy's In and Out Burglars Sonic Hardee's Backyard Burger A & W Culver$ Johnnie Rocket's Dairy Queen Fuddmcker's Five Guys Burgers Smash Burger and Fries pl> q uwe, wAb"0/.I 01t °060+0 OR 10izi io6 Landlord further covenants and agrees that, If during the term of this Lease or any extensions, Landlord Shall own or control any land other then the Premises, which land Is adjacent or contiguous to the Premises, or which constitutes platted lot out of which the Premises Is a part of such lot, any building(s) or other Improvements conetmoled upon such other land shall be set back 76 feet from the State Highway 6 or Its frontage road located along the Northeast boundary of the Premises, whichever is closer to the property line of the PrOMISes, provided however that this restriction shell not be applicable with regard to existing Improvements on land owned or controlled by Landlord as of the data of execution of this Lease, or with regard to any Improvements existing on land which subsequently comes under Landlord's ownership or control on the date that Landlord acquires such ownership or control. Landlord agrees that the covenants set forth above shall fun with the land and shall Inure to the benefit of the Tenant and shall be binding upon the Landlord and the Landlord's heire, executors, suoctissors and assigns. In the event Tenant purchases the Promises in Its own name or the name of a nominee, such covenants shall remain In effect for a period of 20 years from the date of closing notwithstanding any earlier termination of the Lease, Landlord has executed this Covenant on this t-Aday of uc bf,d .2011 LANDLORD: COLLEGE STATION MARKETPLACE, L.P., a Texas limited partnership By: College Station Marketplace GP, LLC, a Texas limited liability company, a general partner B eln0r, Manager THE STATE OF TEXAS § COUNTY OF� �1"74"2,,,,���L(ACKNOWLEDGMENT) , § This Instrument was acknowledged before me on this h /� =. day of 2011, by Andy Weiner, as a Manager of College Station Marketplace GP, I.I.C. a Texas limited liability company, a general partner of COLLEGE STATION MARKETPLACE, L.P., a Texas limited partnership, on behalf of said limited partnership, on the date stated above, to cer6U.WhIch witness my and and se of office. � .•! SRADLEY INOMAS SHARYE Notary Rubllo, Stetof Taxaa MYcommlosion Aup II 26. 201{rea avitma0 012080Eo gN 10M lOb AFFIDAVIT OF OWNERSHIP BY LANDLORD Andy Weiner, Manager of College Station Marketplace GP, LLC, a general partner of COLLEGE STATION MARKETPLACE, L.P. being first duty swum on oath deposes and states that helsheAhey Istare the Landlord at Landlord's duty authorized officer and that the Landlord has tille to all of the property descdbed on Exhibit B attached and that the Landlord owns no other property. __�/y�/— � IN WITNESS WHEREOF, the Affianl has set hlslherltheir handle) this (0 day of _E,��J�� LC�T 2011. AFFI T S elner, Manager of College Station Marketplace qqP a qen.1 it I partner of COLLEGE STATION Subscribed and sworn to before me this V day of 1 . 2011. . tr, e2ADlEY INOMAS SHAEPE 0 a ublicit NOtuy Publlo, State of Texu ry MY Commbeton ExPlrea /w /�`� AVaurt 2e, 2014 My commission expires 1 PLEASE ATTACH PROPER ACKNOWLEDGMENT FOR STATE WHERE DOCUMENT IS TO BE RECORDED AND EXHIBIT A (LEGAL DESCRIPTION OF PREMISES) EXHIBIT B (LEGAL DESCRIPTION OF LANDLORD'S OTHER PROPERTY)AND EXHIBIT C. plo q 01106040 OR 10v 107 COLLEGE STATION, TEXAS UC: 042-2814 J,u:glsivred Iw�1:1 Exhiblt A to the Covenant Not to Compete Legal description of PREMISES BEING ALL THAT CERTAIN LOT, TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN BRAZOS COUNTY, TEXAS, AND BEING LOT SEVEN (7), BLOCK THREE (3), TOWER POINT SUBDIVISION, PHASE 11A, AN ADDITION TO THE CITY OF COLLEGE STATION, TEXAS, ACCORDING TO PLAT RECORDED IN VOLUME 10076, PAGE 73, OFFICIAL RECORDS OF BRAZOS COUNTY, TEXAS. Property Tax ID #358538 (00121I191)8 0 COLLEGE STATION, TEXAS UC; D42-2914 Unrvgf.-Aw dIm J.il Exhibit B to the Covenant Not to Compete Legal deaedpllon of Landlord's property (Landlord to Insert legal descrlptlon) 100121789219 ouoioio 'A toia'4 118 i pits EXHIBIT B - Lots 3 - 6, 0.63 Acres Tower Point Subdivision Robert Stevenson Survey, A-54 College Station, Brazos County, Texas Flold notes of a 6.53 acre tract or parcel of land, tying and being situated In %elf9f q;"prt Stevenson Survey, Abstract No. 64, College Station, Brazos County, Texas, and being part of the 69.42 acre -'Tract One, described in the deed from TlmothyJ, Crowley to College Station Market Place, L.P., recorded in Volume 8274, Page 111, of the Official Records of Brazoa County, Texas, and sold 0.63 acre tract being more particularly described as follows: COMMENCING at an 'X' found in concrete at the north comer of Lot 12, Block 3, Tower Point Subdivision, Phase 3, according to the plat recorded In Volume 9497, Page 120. of the Official Records of Brazos County, Taxes, ssid'X' also lying in the southwest right-of-way fine of State Highway No. 6; THENCE N 38Q 33' 20' W along the southwest right-cf-way line of the beforementioned State Highway No. 0 fora distance of 471.47 feetto a'A' Iron rod found marking the north comer of Lot 7, Block 3, 1,31 acres, Tower Point Subdivision, Phase 11A, according to the plat recorded In Volume 10076, Page 73, of the Official Records of Brame County, Texas, for the PLACE OF BEGINNING of this desoriptlon; THENCE along the northwest line of the beforementlonad lot 7, Block 3, as follows: S 610 48' 40' W for a distance of 113.17 feet to an W found In concrete marking the beginning of a curve, concave to the southeast, having a radius of 326.00 feet, Southwesterly along sold curve, for an am distance of 204.48 feet to an'X' found In concrete marking the west comer of the said Lot 7, Block 3, and the end of this curve, the chord bears S 330 60' 3W W - 201.14 feet, seld'X' also being the beginning of a curve, concave to the northwest, having a radius of 833.49 feet; THENCE Southwesterly along said curve, same being the centerline of a proposed 40' wkle private access and public utility easement, for an aro distance of 165.69 feet to an found In concrete, the chord bears S 210 $4' 13' W-166.42 feet; THENCE N 066 03' 28' W for a distance of 242.14 feet to a W Iron rod set In a curve, concave to the west, having a radius of 380.00 feet; KIND ENGINEERING AND SURVEYING BRYAN tEMAS 0110 40 Olt 10W 1�0 EXHIBIT B - Lots 3 - 0, 8.63 Acres Tower Point Subdivision Robert Stevenson Survey, A-54 College Station, Brazos County, Texas Continued - Page 2 THENCE along the east line of a proposed 22.72 acre detention area as follows: Northerly along said curve, for an arc distance of for an arc distance of 188.09 feet to a %" Iron rod found marking the end of this curve, the chord bears N 010 31' 42" W-187.06 feet, N 160 48' 36" W for a distance of 448.00 feet to a W fron rod found marking the beginning of curve, concave to the east, having a radius of 200.00 feet, Northerly along said curve, for an am distance of 204.06 feet to a %' Iron rod found marking the end of this curve, the chord bears N 130 27' 04" E-195.31 feet, N42040'43"E for a distance of12.13feet toa''A"Iron rod set In the southwest line of a 16 foot wide City of College Station Public Witty Easement, Exhibit A, as described In Volume 689, Page 210 of the Deed Records of Brazos County, Texas, S 470191174 E along the southwest line of the beforementloned 16 foot wide City of College Station Public Wily Easement for a distance of 32.42 feet of a %" Iron rod set, N42040'43"E fora distance of16.00feet toah'Iron rod set In the southwest right-of-way line of the beforementioned State Highway No. 6; THENCE along the southwest right-of-wayllne of the beforementloned State Highway No. 6, as follows: S 470 19'17" E for a distance of 566.20 feet to a W Iron rod found, S 360 33' 26' E for a distance of 180.21 feet to the PLACE OF BEGINNING, containing 6.63 acres of land, more or lass. Prepared 05"11 RwAsed 0=11 removed lol 9 vefewoe & revised Lot A twrear~P.Ww 34.emsrnIrA-"dervWWs.ws KLING U(1regis'sered laiJ a COLLEGE STATION, TEXAS UC: 042.2914 01IMB OR AM % Exhibit C to the Covenant Not to Compete Depiction of landlord's property I'Landford to Insert legal descrlpilon) .+e 1001217892110 I 01106oc Vol s 040 OR 10M 112 i Frojva RayoNsa SC" 1'-400' EXHIBIT C DETENTION AREA LOT 4. OLD" 2 22.73 ACRES LOT 4 I LOT 0 I LOT 3 LOT 8 1 11 to L 0 P0. 73 LOT 8 YI d z LOT 12 1 1 PHASE 3 VOL 9497, Z P0, 120 �1 1 STATE HIGHWAY NO. 40-R.O.W, VARIES (W. D. FITCH PARKWAY) LINE TABLE; NNE KONG DISTANCE Li - 'S81'44O'W 113,17' CI C2 L2 N85'03'28'W 242.14' 9ru=1%ivroillm�!I L3 N15'48'35'W 448.00' C4 CURVE TABLE: L4 N42'40'43'E 17.13' CURVE LENGTH RADIUS DELTA CHORD SEARING L5 S4719,tre 32.42' 01 204,48' 320.00' 35TWIV S 3350'38'W-201.14' LO N4240'43'E 10.00' C2 105.60' 833.49' 117E ' S 21'34'13'W-185.42' L7 S4719'17% 55&20' C3 188.90' 380.00' 2829'48' N OP31'42'N• 187.05' LO S38'33'28'E 160.21' C4 2005' 200.00' 5817'18' N I3'27'04'E-195,31' Uale9Lt.red Imi"! Doc Bk Vol 010" OR t0424Ps 113 Filed for Rawrd In' PA10W COLUIY OAJ HW 18r2011 at M38P N0 M REMIHS 0ocatent "W, MONO A"At 52100 Recolst Ha W - 425VI BYI Wale When BTAIE BF WAS MTY OF 8RA209 I hereby cvtlfa that this InstraaMt ws (lied ae the date ad ties stowed hereon ba an ooffdtheMflciol.PlAdllct MOcill dfr aad swa BRA209 C90HTY as it hereon ba es. HW 1812011 WIWABIE� IiCCa Mr WMIY CLIN SILL & RETURN TO: COMPANY Doc ak gySOS![2 ABSr rl 01155682 DR II153 Pa I4 t GF8 MILIMITED RESTRICTIVE COVENANTS AGREEMENT This Limited Restrictive Covenant Agreement ("Restrictlo ) dated ellecttve as of %bbrud rg.S 2g13, is made by COLLEGE STATION MARKETPLACE, L.P., a Texas limited partnership ('CSMP), and HG REAL PROPERTIES, LLC, a Texas limited liability company ('PRIMROSE"). RECITALS t. CSMP owns the real property more particularly described In Exhibit "A ('CSMP Track'). CSMP represents that, other than the CSMP Tracts, neither CSMP nor any entity owned in whole or in part by CSMP owns any property located within a two (2) mile radius of the Primrose Tract. PRIMROSE owns the real property more particularly described in Exhiba "B" attached hereto and made a parl hereof ('Primrose Tract'). The CSMP Tract and Primrose Tract are sometimes referred to individually as a MW and collectively as the 'Tracts.' 2. CSMP and PRIMROSE have agreed to a limited use restriction on the CSMP Tracts for the benefit of the Primrose Tract. NOW, THEREFORE, in consideration of Ten and no/100ths Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by all parties, the parties agree as follows: 1. Restrictions on Use of CSMP Tracts. For twenty (20) years after the date hereof (the 'Restricted Period'), no portion of CSMP Tracts may be used for a childcare facility or school providing preschool and kindergarten instruction; provided, however, child care facility or school providing preschool and kindergarten instruction shall not mean a leaming center, such as that operated by'Sylvan','Kumorf or "Huntington'. No portion of the Property shall be used as an adult book store or adult entertainment facility. No portion of the Property shall be utilized in any manner to advertise any of the prohibited activities described above. 2. Termtnatlnn. The Restrictions shall automatically terminate at the and of the Restricted Period without any further action by the parties. 3. Notice. Any notice or other communication required or permitted under this Agreement (a'N21jag') shall be in writing and shall be deemed to have been given and received the earlier of: (a) the date the Notice is delivered by one party to the other parry personally or delivered to the parlys address by a party or by a delivery service which records delivery dates, or (b) three (3) days after the Notice Is placed in the mall addressed to the other party at the parties address, property stamped, certified or registered mail, return receipt requested. A party's address shall be as follows or as set forth in a Notice to the other party. College Station Market Place, L.P. 1445 North Loop West N625 Houston, TX 77008 Attn: Andy Welner HG Real Properties, LLC 3007 Coronado Drive College Station, TX 77845 Attn: Gordon G. and Holly L. Mitchell IWIB1364 21 Doc ek Vol PO 01145682 OR 11153 2 4. Amendment and Terminadpn. This Agreement may be amended or terminated In whole or In part from time to time, and at any time: (a) by written Instrument signed by the then owners of all of the Primrose Tract and the CSMP Tract and recorded in the real property records of Brazos County, Texas; or (b) in accordance with paragraph 2 of this Agreement. 6, cwenam� Running with the Lend. Without Ilmiting the provisions of paragraph 4 above, the parties agree that the provisions of this Agreement will be deemed to be covenants running with the land that are for the benefit of, and create burdens on, the respective Tracts. 6. Bindino Eff This Agreement binds, benefits, and may be enforced by the successors in Interest to the parties. 11 ? "; 1 1 <I i,.,-,= 7. Choke of Law. This Agreement will be construed under the laws o1 the state of Texas, without regard to choice -of -law rules in any jurisdiction. Venue Is In Brazos County, Texas. B. Number and Gender. The use of the singular will be deemed to mean the plural, the masculine to mean the feminine or neuter, and the neuter to mean the masculine or feminine when context requires. 9. Captions. Captions used In this Agreement are for convenience only and will not be considered as a limitation on or an expansion of the terms of the Agreement. 10. r onstrucllon of Agreement. The terms and provisions of this Agreement will not be interpreted more or less favorably between the parties by reason of authorship or origin of language. 11. No Third -Party Beneficiaries. Nothing In this Agreement, expressed or implied, Is Intended or may be construed to confer on any person or entity, other than the parties and their respective heirs, successors, and assigns, any right, remedy, or claim by reason of this Agreement. This Agreement is Intended for the sole and exclusive benefit of the parties and their respective heirs, successors, and assigns as the owners of the Tracts. 12. Jim. Time is of the essence with respect to each covenant, agreement, and obligation of the parties set forth In this Agreement. 13. Counterparts. if this Agreement is executed In multiple counterparts, all counterparts taken together will constitute this Agreement. (Signatures on following page) {0018176421 Doc Sk Vol 01145682 CA 11153 Fe3 COLLEGE STATION MARKETPLACE, L.P., a Texas limited partnership By: College Station Marketplace GP, LLC, a Texas limbed liability company, one of its gene 1 pann rs By: Nana• + Tit • Authodzed Representative By: Crowley Development. LLC, a TexasAuMzedR Aycompany, ono d itBy:Name•Tide• esentativa THE STATE OF TEXAS § COUNTY OF ��[� , S § / T is instrument was acknowledged before me on the � day d +�1 ., 2013, by rrovl Authorized Representative of COLLEGE STATION MARKETPLACE GP, LLC, a 7 xas limbed liability company. ono 01 two General Partners of COLLEGE STATION MARKETPLACE, L.P., a Texas Iknked partnership, on behab of sold pannerehp. I NpM1ry PUU110. eU1a Ul Txaa3 (/�///fIJI,i'Y-� �y rnt.; My Commfaaion Eaplraa Nbmbry OA, 201E Notary Public, Stale d Taxes THE STATE OF TEXAS § COUNTY OF—•DYcYLGS § This instrument was acknowledged before me on the a-- day of . 2013, by \ L)Lirscr . Authorized Representative at CROWLEY DEVELOPMENT, LLC, a Texas bmhad Ilabllhy, company, one of two General Partners of COLLEGE STATION MARKETPLACE, L.P.. a Texas limited partnership, on behalf of said permership. agb't, y�, NNi NoMIWry 4'A PxIMSWEoRfRfiO Cimon g My ComlaNCA Expiga JUmm6.2015 J0012136421 0114568Y OR ILY16 HG REAL PROPERTIES, LLC aT limited liability company Br Name:Vkt%IgO 1 THE STATE OF TEXAS COUNTY OF BRAZOS This Inaant was acknowledyad baton me on the .S �t day of ,t �2 LU by Me ff rrniil�y✓f d HG REAL PROPERTI S, LLC a Texas limited liability company, on WhaM of said limited liability company. LINDA MORGAN . Ndnp P,MSWladTm My camYabn w+ APtaL73.1013 Exhibit A — CSMP Tract Exhibit 0 — Primrose Tract f00reln4xl Doc ex Vol P9 01145682 DR 11153 5 EXHIBIT "A" CSMP TRACT Lot Three (3), Block Two (2), TOWER POINT SUBDIVISION, PHASE 12, an addition to the City of College Station, Brazos County, Texas, according to the Plat thereof recorded in Volume 10533, Page 46, Official Public Records of Brazos County. Texas. 2. The tracts described on Exhibit A-1 attached, SAVE and EXCEPT the following tracts: Being all that certain lot, tract or parcel of land lying and being situated in Brazos County, Texas and being Lot Seven (7), Block Three (3), TOWER POINT SUBDIVISION, PHASE 11A, an addition to the City of College Station, Texas, according to vacating plat recorded In Volume 10076, page 73, Official Records of Brazos County, Texas. Being all that certain lot, tract or parcel of land lying and being situated In Brazos County, Texas and being Lot Fight (8), Bock Three (3), TOWER POINT SUBDIVISION, PHASE 11A, an addition to the City of College Station, Texas, according to the plat recorded in Volume 10076, Page 73. Official Records of Brazos County, Texas. Being all that certain lot, tract or parcel of land tying and being situated to Brazos County, Texas and being Lot Nine (9), Block Three (3), TOWER POINT SUBDIVISION, PHASE 118, an addition to the City of College Station, Texas, according to plat recorded in Volume 10212, page 226, Official Records of Brazos County, Texas. Being all that certain lot, tract or parcel of land lying and being situated In Brazos County, Texas, and being Lot Fourteen (14), Block Three (3), TOWER POINT SUBDIVISION, PHASE 4, an addition to the City of College Station, Texas, according to plat recorded In Volume 9699, Page 156, Official Records of Brews County, Texas. Being all of Lot Fifteen (15), Block Three (3), TOWER POINT SUBDIVISION, PHASE 8A, an addition to the City of College Station, Brazos County, Texas, acwrdNg to plat recorded In Volume 10042, Page 214, of the Official Records of Brazos County, Texas. Being all of Lot Eighteen (18), Block Three (3), TOWER POINT SUBDIVISION, PHASE 8A, an addition to the City of College Station, Brazos County, Texas, according to plat recorded In Volume 10042, Page 214, of the Official Records of Brazos County, Texas. Being all that certain lot, tract or parcel of land lying and being situated in Brazos ,:f1:11nty, Texas and being Lot Twenty-eight (28), Block Three (3), TOWER POINT SUBDIVISION, PHASE 3, an addition to the City of College Station, Texas, according to vacating plat recorded in Volume 9699, page 155. Official Records of Brazos County, Texas. 3, 7.68 acre tract more particularly described in Exhibit A•2 attached hereto. (001913M 21 L M-1Z I - i EXHIBIT A-1 u09 ON Val Ye 01145482 DR 11153 6 F. p)S:917 0R 0036 i La G i i i Gig � i� L7 6 L9 I 28.77 ACRES it �� Lit U2 I.3 www� d— fA _ trC aw 4m Li • w roles �,� , , Iw q.,sy STATE HIGHWAY NM 40-R.0.W. VARIES (W. P. FITCH PARKWAY) LINE TABLE UNE KARM DISTANCE .I S4819'a2'W 332,44' L2 S50'47'22'W 974.50' .3 S5S4CS4'W 177.Se .4 N27WI4*W 4496T :5 N4416'20'E 324.06' L6 94Y"24'f 20.00' CIJRti£ TABLE: L7 N4675'38'E 32.80' L8 S4410121 304.57' CURSE LENOTH RADf1S DCLTA CHORD DEANWO L9 N45'00'48'E 17.60' CI 51.58' 30.00' 981Y52' N 7794'10'WW5.44' 00 S65'0331 348.56' C2 925.36. 73354' 72I8.44' N 069T59'C-565.2V LII SO44'27'W 49.44 C3 55.89' Sa.00' 83•A643' N 781a'71'E-5163' L12 S65'407E 52.4Y C4 146.44' 300.00' 271W(W S 3r43'261-14447 L13 S411WSrS 26000' CS 32.91' IS0.00' 12'34'19' S 7916'23E-02AS' u DOC Val 01145682 OR 11153 P*7 no.. :1 Hal iV I'lU017 OR I13034 73 E01M A-1 -26.77 Aae& Tower Point Robert Stevenson Surrey, A-54 College Sat on. Exams County, Texas Fleld notes of 626.77 Sao oadorparcei oft", tying and Wing Skuaud in the Robert SloYwaoe SUmay. A34, College Station. Brarm County, Two, ant Mute part of the 69.42 aaa • Trac One, and AN of the 4.05 scro - Tract Throe dewwiMd m ew dead from TM(AhY J. GaNay la C011"S Station MWst Place, I.A.roeadediO Vuswhe 9274, Pape 111. ofthe0eklaf Racwdsof Bra:oa County. Tawu, and Sold 20.77 ode trod being moro praadary, described as fabvn: B90INNING sta Wka rod found mWinp it* South canner ofW 14. Bbek 3, Tower Point Subdivision. Phase 4, scaang to 0" Plat recorded In Volumo 9599. Pepe 130. of Via 010cw Records of OMM County. Taws. wid A' eon rod also tying in eN namwe&t right tf tvay lam of Side HipMny No, 40; THEME along eu nonMnn dpnto(.xey we of (he bofo ramantldrd Sure Highway W. 40. w hl0owat S45-S9'02'W faadWance01332,44 fGKScwdaNnOh4of- wlymarlur bear* 9 46.40' W -0.20 feel 9SW4T2r Vf for a dNlance of 974,50 fast to a ameM right. of.v ay mwkee found. Ij S 53- 4V W W for a dsunoe of 17754 tent to D A' Iron rod 1 fouldmwkap f1n moat me"mons Amer of AMrgrptRwd-Wwide rgMchway, as Mason an U e mw".way Dedication. Arrington Road and ou' Decatur dive, according to tM plot mooided In Voluma 1600, Pape 12. of the OfOcall Racado Of Bathe Cony, Tawas, Said lo' ban rod also Ming Me bb*v*V -)j 1,.i. . UenMbn cane, concave to IM norm, having a (*due of 30,00 fast; THENCE adore iM Seat and MMaaw rghtoi-wiry line of Arrington Road, as fwlowe: Westerly alone said aria, form emt Vth at$156 feet to a 14' satin rod found marsing we ON of UM It"Don aria. thechord bean N 77r o4' 1B' W • 45.44 feel, N 2715V 14' W far a dlstanoe of 440.67 test to a You- Iron rod to tM toutcoderpIMMavwgof7crave. eaaf, having +p s eOof 733.51 testf Northerly along Said curve. taaneraluglhof 92A36fearm • Y,-Icon rod fowl me" the and Of a" cone, ate dead bears N OW IT SW E - 56521 feat N 44- 26' 2W E for a alauna of 324.00 fast to a M' Iron rod found madang 0te begirWrp of a uonal0on curve, anave re ero (bon"wiing around a tumaboull. having a ru9w of 50.00 feet, Nonh9eNeiy asap wld arro.fa en Srolenph d15569 faN. To a W Iron rod found mad rip fhe beginning of a COWIVOUM ant. tint➢" to the amen, stump a radio& of 300.00 feet, th chord bee* N 704 2W 61' E.52.05 bet Ent" alert Seal aunt, Wool aro"th Of 146.M feet 10a'A' Iron rod fond marking 6w and of INS curve, ale chord Were S 57' 4T 20' E • 1w.99 feet, E 43144' 24' E for a diaunce or 20 00 feet to a 14- Icon rod found. i Ilea axdx[wxc we wrrrun rAM IrYY 2e4 �. Doc 8k voi Pe 91145682 OR 11153 B Qac :V. lol P1 U084917 0R 11i036 54 Eshbit A•1 . 26.77 Acton; Tower Point PAW Stevenson Survey. A-64 Co6ope Statlon, Brado. County, Texas Continued - Pope 2 N 46. 15'06'E for a distance or 32.50 fax to a 80d na3 sot: THENCE S 44- SW 12' E two disunaeat 304.67 test m a 60d mole "tin the rodhwaat Me of Lot 25. 810a 3. 1,06 acme, auoWNg to tlr plot recorded In Valume 0800, Pape 155, of Ue Ome1N Facade of BNma Cowry, Toms•, THENCE N 49s W 46• E for a distance of 17.80 tool to a 60d rue found morWg the roMwest corner of the befomrnOor" Lot 28, Block 3, was being die bepW" of a laavo, concave to the noM, hav'xq a raW» of 150.00 bat, THENCE along the nos bro of Ne bdorementbned Lot 28. ebrk 3, as btlowo: EsstedY along odd cum, form rd lanpho132.01(echo A SOd nail found ftddN tM end of ells curve. On chord boon 879-W 23-E. 32AS feat $ 85. 45. 33' E for a dlobeoe of 346.36"10 an'%' found In C all marking aM colnmen aamar batwaen the send Lot 26, Black 3, and the b6foremrulonad Lot 14, Block T THENCE 9 04- 14. 2T' W a" ale common Me aetw9a11 the boforamm4wed Lot 26. Block 3 and Lot 14. Block 3, for a dbtwoo, of 40.44 feel THENCE along da enutIvaotrlee of the bebnmen0onod Lot 14. Block 3. "follows: 5 65-,w sr E for a distance of 52,43 feel to ► SS' Iron rod found, S 41.00. 58•E for a distance of260.00 tool to re PLACE OF BEGINNING, mnta nhy 28 71 sttaa of land, more or less. 1 OF Surveyed: FeOnury, 2011 rain !ti'•nse,o� O R.P.t.S. .9. No. 2003 I.pelea otovar xlIHO1M W(aYl,a 41(/(Jey(IMa Y,Yt IrW .ai of b -4 i EXHIBIT A-1 1. O a c� CS la L6 1 Ls STATE H4GMWAY HD. 40,40.W. vm CVA D. MCI PARKWAY) UK TAU.& talc so*" Otl W= Lt 347'1W17z WW7.02' L2 SD'33'20'C 6e1.WX L3 Sj 2W'j4'* lez2r L4 SO474'2,rW ey,oV LN NWWWWW 70.0e LW S4¢'WW_ia'!W, L( 17A LW NN'15'302 32W0' L2 N43'4g4'I7 2W.Wd' L10 Mr4WbM 113,3r Lit N0W1W'B 312W L12: NiW'10'76'W 44A00': Liz IIH',10'4J'E 27.13' 01145682 OR 11153 P'9 Ooc 8k Vol PW 131D84017- OR 10036: 5$ CURVE TAKE - CUM LOOM RAMA OIXTA WNam wARWMt Wt 700AW' 514.00' MY14' s M17Y11^Ah1W3.]0' W3 WOZIO"t43..0.4' WW M"Xr S-24d$02-1M017.40' m t0a2W 4Li Wv 22824r s mom -taus, 04 3201' 1W.W 12301W N m2nxI*,3205 t8 01:71' WOW W71,O W' N 47'4Y48`WN/.W 07 2Z-N 91 WC 7TY� N 31'W3'tVp tk 11&. c* - t70AR 3e4A0' 20.47' 0�' N W7'WW'WW'1WL77,2V CS 50W:M W'. 7MIr N 2223'321-4027r of 204AY 200.00' WW2Y1W N i32r04'E-roW3r 4of 6, • ® 01145682 OR wsf; pit 0o, Olt Vol A' 01i1E4017 OR f0036 i6 Emhlbf A -I Conttinued • 20.4a Acat I T6%w Polnt RobertStevenson Survey, A•54 CClaga Station, Brame C tli y, Taws Fele noun o/a20A0eue a.aoperuloflsnd, lyup andtwahgaluatedin i Ime ROWn Stevanaan Sully, A•54, Copepe Sugon. Brame Canny, Temea, and Wing ban of W 00.42 acre •trap One tleeuibea N the Coed Iron TYnoafy J. ' CrowwybCoaege5tetlanMuaat Pfa4,L,P..naroeUNVatfM0774, Pape 171, �) of the g0{del RemrW of Bratae Coumy, Tows. Bred ukf 20A0 am pop Wlnp i more particularly dascrglW as tOltmw: BE0INNINB atan'X' fotutd N mfueu al the nalh conerd Lot l2, BbrA 3, Tower Paint Subdh9bn, Ph*" 3, mcorWrp b the Plat ramdW N Volume 04M Page 120. of anOMCW RamdsoftArse Couny, Tassa uW'X'wleoWnp in me aOeNweat hPir wy Ilse a $twee Hlphw9y N0. 0: THENCE Alaq fha oonhwest ant of sa beroremandoned W 12, Block 3, memo being fM eoearaaei an are 4V wide and 20'wie Private acceaa and pualb .. .i� idwmam as fo0ows: S 111• 2C 3t' W ro a d(aunCe of 102.22 rate u a ii• iron rod found atNa billows V olsaevs. conoma b the noNaesL heveq ■ Mtn M 514.00 teal, Sauafweetady along amid cun'0. farm arc Wvthot IIKOGG feat a w Iron rod maMng dw DtOYafkq Of a rowlam cutva, mmaw to the southaast having a rafts 443.00 feel, W Ctord bmara S W- 35 11, W - 103.36 teat Soudwrodady along mid aunt to an arc length of 053.10 fast to a A• eon tad morkarp the boon" of a mam W". Concave to W W W, having a rafts of 414.00 teeL aw Cmn W are S 25m 33' 07 W • 017.451*4 SONwfy'lung of id amw,toan amlongNct 165.25 NW. W Chord bean S O7• I P 3W E • 154.16 Wt. S 04- 14' 27' W fa a cratancs of 53.00 fowl and oonwt in the ACM IM6 of Lot 20. &oak 3. needing to the final pot of tot 20, Block 3. Phm 3. Toner POW Subd~, moored N Volume NO, Page 155. or pea Official Rama Of Brame Count' Tows; THENCE along09 north and rlurOmeelDraw; ofthe betoranwntiorud Lot 26, Block 3 -1.00 auaa ea foWvn: NSS-4V37W for a dhunrwm 70.05 Iml b W beginning of curve. 6004t4w fo W north having a tadius of 150.00 feel WC$WIY along "Id caw, to an art lenam Of 32.91 feat to Ina nnrdfweal mM7 of mid Lot 20, Block 3, the Chad been, N 79- 20' 23' W - 32.05 foal S 46' 00. 4WW for a dbUeoa of 17.00 fowl ua:l•oar rod, THENCE N 44m SW 12' W ter a dhlutce of 304.51 feat and Tamar In me northwest an of W bofoamemioned 80.42 sue tract, sane being me moudheaet slubwl of me Arrington Road tmaoou , THENCE AllmliWeaal end AGnIMM ttthrl af-wayana CIAMngbnRoadas shown on the plat OfAnVWW Road • Wwida dghtb4wy, so al C,,,O Or, me RigM- oFweY G4dlcadon. Anfndon Road mad Ott' Oxalor Orbre, aaaroYq to the plat nmrded In Volume 7800. Page 12, ofWOOloal RemNaolSrerMCwny, Texas as fcsowa: N 48- 1V 3W E for a duunca of 32.50 feet to a Y4' Iron nd found maM1Ng W moat eadedy mna of AMnplon Rand rlgbWf ey, muw unu,teuxa +rho wmvevwa 5.r h, ® ® Doc Bk Vol Ps 91145462 Bk 11153 it +0c Bl: "pI Po P.OF.NIl? cR b1036 57 Eahidl All Con9nued • 20.49 Awes To~ Point ROW" Slavemmn Survey. A-54 CoaOpo SWMn, &ilea County. Taxes Conlon ed. Page 2 N 43. 44' 24' W for a distance of 2o.90 feet to a R' iron tad found marking Irk begkn"OloOlnl, ooneaw ro Out souawnst hating a APS" 0(437 00 feet, NorNweate4yalong Sad ouva, farm amkfpdt of el.71 feel to a W Iron rod found Mar" the bngutnig of a nvarN ark, cOnc" to Out narthaaal Mving A tames of 64.00 teal tMcMrd bearaN 47.47' 46' W -61.66 feel. NOnh o%WIy dWV said auw,lot in=W4pof65.90feel loafi- Mort rod found morkhg the payntep of a a wraa Qt2l.mngwbIrk dba&rnlNNnO or w. g.2o fotail pro tinatl paysN 22'3Y Sr W • g230 loot Notd—stony awp swain. far An argr"'�S'fa xipj41,p .:;•o a W ken rod fazed midaVtfrd ba�lt+yrnp"ol s tawnte ark, caww b tltb chord bW, MWp I 58, -113. 0 fool Iha rAord Man N 37• 63'Ib'W• f1on= length1 Nonlnwaterly sing sad nfoal loran anthofadat dfeetfoa th bon redfound mokingor (W W IN-17tlw euat, the NnNpear N6T'06'6TWe south tea; N 43.4!'OS'W fahe amPos01115.311MbrM oath comer of the {aapoW detention pond; THENCE atop me east IIM of one pmposaa datindon Pon. as logo"! N a& 34' to- E fa 4 dkUnp of 312,08 fan to a W bent fed found MMUV Irk Mpinn4p of a uaw. macaw to the noMwul hewing a tptatll of 3M.00 foal, Naha M along sad eon. Won are I W O of 506.36 f40 to a W loan rod found manin0 qn are of d" ama, the chord bean N 2r 23' Sr E.469,72 fast. N Sb' 46' 35- W for a distance of 446.00 foot to a W loan red found nU MV Uto bagkNtp et♦ curve, mnaeva to ON coal, havkg a radius of 200.001N1 Northerly along sadmrva, Won anI4np2rof 204.05foal to a WIran rod found markig 6M end of d* anat, the anon bean N 13- 27' 04- E. IgS,3i tat N 42. 40V 3• E iq a dfaLna of 27.13 Not to a W loon rod rand In she souchw" dgh -ofwwy tine of stela HIO" No. 6; T14ENCEalong the southwest nghtaf« yWn of IMaOfaranmlloned Swe Highway No. S. as lollows: S 47• W WE E for a dlllance of 56162 feet to A W eon rod rand, S 36. 33' 26' E for a distance of 051.01 foot to Iha PLACE OF BEGINNING, ContaWng 2049 ROM of land. F more prises. � *e ra Surveyed. F , 20tt By. J t •be,o•'a� .M. 111.151.11. No, 2003 AwuMfdQLtr , •„«.ta.. z.. vet m..r. a, r yl MI/y �1ur 0�142682 OR 11153 P12 $CALQ I•-100' CURVE TABLE: aAva 1a1aw AAOUS OO.0 04009 ev+10+9 CI $2.17' 40.00' 74-44'01' S 0 rA-E«436R 11f1/ PA OISNP III 8 4 wwt. urourl�m 117 I I P.08. N 43*45`31*EE l5MO7 2{ TIff II AN 1 ~�1 P, T. l9 CALL" JTAILW 414911F', ,YACf s A9 'I d`¢� AS JAW AAOW IN1CTJ NX S&, � z'1 0� 1 I i > �N 434O'05'E BLOCK NI (IN a.c1' t P?llfl:f 5F/RC4V ANIM[T HALT � 4q lDewP P S)11 ACNT ROCI ] � J P i Nr. 6N) l4G ,P) I� z IS' WIDE P. PHASE 13B 1 I s45'OB'31•W-'293.7B' �ro i ......................... 1 viwn 1tI IS' WOC P.U.E I I 9 ! it 'tit PHASE 13A d, I p r 11 i t al. Nnp4 lbil z lm O 4au14l n WM a .a McumiOn T.wo,® ! w�i. 1w�!w � 1 1 w, �-- --------- ....- -n __ ---- 111 I -.-- - - 1'i w ltrt° S a5Y9'it'W 1 I AflflINGTON flOAO-10'fl.O.W. Pfa41 OF PAY VOL T400, PO. 12 0O�� �' ui1 1 �........... . 74. .... ........... 1 1 TOWERPOINT9UBWV1510N , PHASE I2-VOL 1PO.0 t COLLEGE STA77ON MARKETPLACE 7.58 ACRE TRACT E)(HIBIT ROBERT STEVENSON SURVEY, A-54 COLLEGE STATION, BRAZOS COUNTY, TEXAS M ` SCALE: 1'=100' DECEMBER, 2012 PNNRy Pr --- -10 nom,n..rnl.n; 101 1[MI M'. 4 Yp PY N]a s AAMIIIXN 4 n.411/N4-nn j 0114568k Vol 82 OR 11153 P13 Covello Station Merkalpkce 7.68 Ana Tract Robert Stevenson Smay, A.54 Cal"s Station, Bn¢os County, Tests Field notes of a 7.56 one trod or Wool dUrtd,tong and being snuarad In the Robert Stevenson Survey, Abstract No. $4. College $fallen, Srows County, Teas, and being og d Ns 3.B36am •Treat Three and pan d"5.711 a"-TractTwo, desan begin tw dead from Sprig Creek CS DevebpmMl, Ltd., to Coleco Station Marketplace, LP, recorded In Volume 6647. Page 207, Of Ow Official Recarda of Duane County. Tana, and no 7.58 acre bad b,Nng Moro pamalMiydeaaibad ore rollovg: BEOINNINO al a W Into rod found marking Oto ammdl gamer between the be11000MMUaned 3.BU Ogre Dad. and a 1.36 one Matt described in the dead w College Station Marketplace, LP rocordod In Volume 8431. Page 3, of the OfBdal Records o1 Brazos County, TWO. ands the soumeae tarts of a 3.70 we Vscl dawlood in Ow deed to MOV Partnership, recorded In Volume 0663, Page 117, of tw OtBclW Records of Brews County, Tons; THENCE N 43' 45' 31' E along tw common Ww between ma beforememlloned 3.838 we trap and an 3,76=6 Dad. adjacent toe force fetoditit" d 660,07 ("Item %, Iran andIwndmaddrgthecpmman WrthedyromerbeMgan the asM3.11M one and andthe3.76 Sue VIOL UIJ W Iron rod also lying In Me sauthwast fichW(-way W* of Stole Mghway No. 6; THENCE $47' 1)' 17' E Wong the southwest righlaf-wsytine of the befaementooW SUIeKV"No. 6, tole dlslancee1697,9916e1 too W man rod found marking (he beginning Of a UuWtion cola from Highway No.0 bAron" Road, being mtcave W the Wee, hating a rodim of 40 Og feel; THENCE Sout"awrgaam0aitaewn Curve, faan=dlslnnced52,17 fettle a W Iran cod act in 8w northwest riolttaf-woy One of Arrington Road, W4 W the " of told transition curve, the chord boon S 09' 57'16' E • 46$5 feel; THENCE along the nunhwest It" of a proposed 0,07 ens Wgbtof-weir Dedication, also Nnown as Towar Point SuO&WOn, Phase 13A, (currently being gOCeind hhrough the City oI Cotbga station), as falowa: S 68'2VIVW (of 9 distance of 66.43 feet to 8W Iron too and cop seL S 45'OW 31'W for adWarwe of 208.49 feel U a 34'kon and a no cap set: THENCE through the beforementiam ti 5.711 am • Tract Two, ae (a": N4411713'W lore adanceaf26511 fee to a W Iran cod and nap sm. S 45'08'31'W fa a dhtanoaof 203.18 feet to a8'fron rod end cap "I hf, h in the 4011mIM gne between the NOW 6111 we trod and the beforomariiloned 1.36 ate bad; THENCE along Nor mmrrwn lino between Uw (o7owing IWO tracts: the betwem a nti"d 5.711 fine- Tract Tort, and the 3.538 eat. Trod Three, and the beforemeotiuned 1.36 gang bad."follows; N 43' 04' 06- W for a diaierae of 144.19 feel to a %' bon rod and cap found mbkktg the Weal caner of t e said 5.711 ant tract, N43'41y05-E fag dieUnce 018.91 feet toa WIron rod and cep found mbeng dw Muth center of the aed 3.836 sea - Treat Three, N 46. 14' 41' W for a distance of 303.41 feet to the PLACE OF BEGINNING, Containing 7.50 sang, of tend. more a P lem s4 gg a Subeyed: Op w_jfosrVI2 G B ' T �Ohencen � yO SU J� S. M. Kong R.P.LS. No, 200 1 eased i"7r12 rwa,Mt fww„ary.,,RnCv,PN W„e•wllYsrwr.�,W+M aagaap ran w Doc Ok Vol Ps 0/145682 OR 11153 14 EXHIBIT "B" PRIMROSE TRACT Being all that certain lot, tract or parcel of land lying and being situated In Brazos County, Texas, and being all of Lot One (1), Block Two (2), TOWER POINT SUBDIVISION, PHASE 12, an addition to the City of College Station, Brazos County, Texas, according to the Plat thereof recorded In Volume 10533, Page 46. Official Public Records of Brazos County, Texas. Filed for Record in: BRAZOS COUNTY On] Feb 11,3013 at 11102A As a NO LABEL RECORDING Document Number] 01145692 Amount 68.00 Receipt Truster - 41221 By, Susie Men STATE OF TEXAS COUNTY Of BRAZOS I hereby certify that this instrument was filed an the date and tin stamped hereon by n and was duly recorded In the volume and vase of the Official Public records or; BRAZOS COUNTY as stowed hereon by n. Feb 11,2013 Karen rk0ueen, erazas Counts Clerk BRAZOS COUNTY IDOISIYA21 6