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PA. DOW DT
CdMDegl~ 77841
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AFTER RECORDING RETURN TO:
Ms. knell Davidson
RcpublleTilleofTexas, Inc.
262611owe11 Street.l0# Floor
Dallas, TX 73204
0719503
0
7
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lCollep siallon' Texasl 101
DECLARATION AND AGREEMENT OF EASEMENTS
WITH COVENANTS AND RESTRICTIONS AFFECTING LAND i
THIS DECLARATION AND AGREEMENT OF EASEMENTS
d en c d into CO a ENA eTS
AND RESTRICTIONS AFFECTING LAND is made an 6
of February V' .2000 (the "Affective Datc"), by and between DELMARBARONHEAD I, LTD.,
a Texas limited partnership ("p3jmif),CNLAPF PARTNERS,LP, a Delawarelimiled partnership
("Q&I) and TEXAS ROADHOUSE OF COLLEGE STATION, LTD., a Kentucky limited
partnership("TeM&gadhouse"). FIRST AMERICANBANKFSB("FjtgAmerlcW")joinsinthis
Agreement solely to evidence its consent and the subordination of its security interests thereto.
WITNTS~TH:
WHEREAS, Delmar is the owner of certain parcels of real property located in College
Station, Brazos County, Texas, known as Lots 1, 5, 7 and 8, Block One (1), The Gateway Phrase 1
(colleclivcly the "Delmar Parcels"); and
WHEREAS, First American is the owner and holder of a mortgage and/or security interest
in the Delmar Parccls;
WHEREAS, CNL is the owner of an adjacent parcel of real property located in College
Station, Brazos County, Texas, known as Lot 6, Block One (1), The Gateway Phase I (the
Puree and
WHEREAS, CNL has leased the CNL Parcel to Texas Roadhouseefor purposes of
constructing and operating a Texas Roadhouse restaurant (the" xm
WHEREAS, the parties recognize the benefit and necessity that they agree to cooperate with
respect to the use and maintenance of their respective parcels (sometimes refereed to collectively as
the "percals" and individually as a "P rcc as expressly provided herein; and
WHEREAS, Delmar intends to develop the Parcels as an imcgmtcd first-class shopping
center, and to that end hereby declares, establishes and impresses upon the P Parcels t of the Parcels
covenants and restrictions set forth herein (Delmar, CNL, and all subsequent
are sometimes collectively referred to as the "Owners" and individually as an "Owner').
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NOW, THEREFORE, in consideration of the mutual benefits to be realized by such
ood and valuable consideration,
h
d
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ot
cooperative use, the mutual agreements set forth herein, an
h archereby acknowlcdgedand confessed, theptatics hereto agree
hi
f
c
w
the receipt and suMciency o
as follows.
ARTICLE 1
EASEMENTS
1
1.1 Acccss Enaements:
i
1.1.1 Delmar hereby grants to CNL, for the benefit of CNL and its suwessors,
as th
lon
e L
Roadh
g
assigns, inortgagees, tenants (including Texas Roadhouse, so
free
lus
ahem
licensees and invitees, a Pere
employees
s
t
,
,
or
is in effect), agents, contrac
and continuous casement on, over and across any streets, roadways, thoroughf Delmar Forces,
resent or hereafter developed up
be
p
paths, sidewalks and walkways as may
forpurposesofvchicularand pedestrianingressandegressforthecustomers, employeesand invitees
vitees are conducting business on
i
n
of CNL or its tenant, as long as such customers, employees or
or otherwise participating In the services offered on the CNL Parcel.
1.1.2 CNL hereby grants to Delmar, for the benefit of Delmar and its suss o s,
licensees and invitees, aperpe
assigns,mortgagees, tenants, agents, contractors, employees,
exclusive, free and continuous casement on, over and across any streets, roadways, thoroughfares,
r hereafter developed upon the CNL
t
o
drive aisles, paths, sidewalks and walkways as may be presen
edestrian ingress and egress for the customers, employees and
and
l
p
ar
Parcel for purposes of vehicu
invitees of Delmar or its tenant(s), as long as such customers, employees or invitees are conducting
offered on the Delmar Parcels.
i
ces
business on or otherwise participating in the serv
1,1.3 EachOwner,asgrantor,grantstotheotherOwners,asgrantees,forthebenefit
assigns, mortgagees, tenants, agents, contractors,
e successors
ti
,
v
of such Owners and their respec
employees, licensees andinvitces,aperpetuai,non.cxclusive,fr eanddcontwtilnuu u µral~ysnsmer
drive males, pa s,
thoroughfares
d
,
ways,
and across any str ets, roa
be present or hereafter developed upon the Parcels for purposes of vehicular and pedestrian Ingress
assuch
long
a
wnersortheirten
h
g
p
~
o
and egress for the customers, employees andinvitcesofsuc
itees are conducting business on or otherwise Ice atin in the
i
nv
customers, employees or
services offered on the Parcels.
1.1.4 No curbs, fences, posts, walls, barriers; barricades, abrupt changes in grade,
whatsoever w
i
d
o
ons
to
we
or any other obstruct
or permanent in charac e! r, shall ever be placed or all
pedestrian traffic, whether temporary p
barricades may be set up to divert
,
remain on any portion of the Parcels; except that temporary
vehicular and pedestrian traffic around portions of the Parcels that are under construction or repair
ceding sentence shalrnot be
Th
e pre
(so long as such construction or repairs are diligently pursued).
construction of buildings and appurtenant improvements (such as
th
e
construed as restricting
landscaping, sidewalks, curbs, gutters, loading dock, trash enclosure, and attached patios) on the
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0709503
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Parcelsinaccordancewithapplicabl0governmental codes, ordinances andregulations andotherwise 7
in accordance with the covenants and restrictions set forth herein. 4
1.2 Cmrmwatcr DrninUe Easement:
1.2.1 Delmar hereby groats to CNL, for the benefit of CNL and its successor o s,
assigns, mortgagees, tenants, agents, contractors, employees and licensees, a perpetual, n- 0
exclusive, free and continuouseasement(and right to use appurtenant thereto) in, to, over, under and the connection, 0
Delmar , ms for purposes t~ri°~tonandremovalofstormwaaterdrainage facilities
across the
installation operation, re rep
to serve the CNL Parcel in a manner which does not unreasonably interfere with any use or operation g
on the Dclmar Parcels.
122 Delmar, as grunter, hereby grants to the other Owners, as grantees, for the
benefit of such Owners and their respective successors, assigns, mortgageos, tenants, agents,
contractors, employees and licensees, aperpetual, non-exclusive, free and continuous casement (and arc
oses right use appurtenant drama ea thereto) in, to, the connection, installation operation meal tenance, repair,
surface ce waterdroinage and, if necessary,
relocation and removal of storm water drainage facilities to serve the other Parccls in a manner
which does not unreasonably interfere with any use or operation on any of the Parcels.
1.2.3 Each Owner shall cooperate with cachotherOwner in the granting of any and
all other necessary and appropriate easements for the connection, installation, repair, replacement
and maintenanceof stormwaterdmWage facilities (whether orderly underground ornbovL and operation sewers,
pump stations, utilities and other services necessary b op authorities, a being
all or any portion of the Parcels or as may be required by governmental
understood that each Parcel shall be responsible for accepting, discharging and/or detaining storm
woterto the extent required by the City of College Station or other applicable governmental entities.
Each Owner shall use its best efforts to cause the installation of any and all such items to occur prior
to paving the affected location and no such items shall be installed within any designated building
areas on any of the Parcels.
ARTICLE 11
Ri MM-S
USn REST
2.1 Protected USC for [`NI Parcel: Delmar hereby declares, establishes, tenants.
covenants and agrees, for the benefit of CNL and its successors, assigns, mortgag
subtenants, agents and licensees, that the CNL Parcel shall have the exclusive right to undertake,
operate, advertise and conduct a sit-dawn-dining style steakhouse restaurant on the Panels, with the
result that Delmar, for itselfand for its successors and assigns, hereby warrants, declares and agrees
that no portion of the Dclmar Parcels shall (directly or indirectly) d ~ be te leased, sold o ro t a by)
conveyed to, or occupied, used or operated by ( Pe
any party as a sit-down-dining style restaurant which has as its primary business the sale of steaks
including, but not limited to, the following restaurants: Logan's, Ryan's, Roadhouse Grill, Outback
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Steakhouse, Lone Star, Bugaboo Creek, Long Horn's, Steak'N Ale, Texas Land & Cattle Company
The restrictions contained in this Section 1 shall
ant' )
"
7
.
Steakhouse R ar
and Golden Corral (
also operate to prohibit the advertisement of any Steakhouse Restaurant (other than Texas
the use restriction set forth in
the foregoing
din
t
ith
4
,
g
an
s
Roadhouse) on the Delmar Parcels. Notw
this on .I Shall automatically expire one hundredeighty(IBOrdaysafterlheCNLParcel ceases
i
r, so
to be used as a Steakhouse Restaurant (exclusive of periods ofconstruction, renovation or repa
renovation or repair is diligently pursued to completion) unless such use
nstruction
h
,
co
long as suc
is resumed during that period.
0
2.2 Prohibited Usc: The panics further hereby declare, establish, create, covenant and
ns
assi
s
,
g
,
agree, for the benefit of each other, the other Owners and their respective successor
ardon of the Parcels shall (directly
that no
li
13
p
censees,
mortgagees, tenants, subtenants, agents and
or indirectly) be occupied or used or operated by (or permitted to be occupied or used or operated
"A"
hibi
t
by) any person or party whose use includes any of the prohibited uses as defined in Ex
eto and incorporated herein (the "Prohibited Uses"), and that no Owner(s) or tenant(s)
d he
h
r
e
attac
of the Properly (or any portion thereof) shall knowingly sell, lease or convey any portion of the
thereof includes any Prohibited Use.
d
d
use
e
property to any person or party whose inten
ARTICLE III
MAINTENANrF AND OTHER RESTRICTIONS
3.1 Maintenance of Pa a s: Each Owner shall at all times maintain, or cause to be
maintained, the exterior and interior of all buildings and improvements from time to time located
on orabout its Parcel, includingull access drives, detentionbasins and storm waterdminage facilities
in good repair, consistent with standards associated with first class retail facilities located in the City
of College Station or Brazos County, Texas.
3.2 ra ' : Each Parcel shall be graded in a manner which is consistent with the
grading of, and not detrimental to, the adjoining Parcels.
3.3 Parkin : The owner of each Parcel shall maintain and provide atoll times within the
boundaries of such Parcel a sufficient number of parking spaces (including parking spaces for
disabled persons) for the permitted use or uses of the Parcel from time to time, as required by all
applicable governmental codes, ordinances and regulations.
3.4 ~gtcJjre "with Occunancv: Each Owner shall use reasonable efforts to cause any
construction work on Its Parcel to be performed In such a manner so as not to unreasonably interfero
with, and so as to minimize disruptions of, the use, occupancy or enjoyment of the other Parcel, or
any purl thereof, by any other Owner and such other Owners successors, assigns, mortgagees,
tenants, subtenants, agents, contractors, employees, customers, licensees and invitees.
3.5 DuildineHeiehiRestrictions: The top elevation of the parapet wall of the main body
of any building situated on Lot 5, the CNL Parcel, Lot 7 and Lot g shall be no higher than twenty-
five (25) feet above finished floor, except that architectural features or elements (which in the
c ec~yfEhTS W ITII COVENANTS AND RFSTRIcnnwe AFFECTING W ND - Pap 4
P:\TexaRwdliouutCollege5tulon.7'xWaaWttlvnlonur•S.vpA 61077.0121
0709503
aggregate shall not exceed fifty percent (50%) of the width of the building facade) may extend up
to (30) feet in height above finished floor. The foregoing restrictions shall not apply to flagpoles
mounted on any building.
3.6 Aggroval of Plans: No improvements shall be constructed, erected or expanded on
any of the Parcels, and no material alterations to the exterior of any such improvements shall be
made, until the plans for same (including site and parking layout, exterior building materials and
colors) have been approved in writing by Delmar, its successor or assign. Notwithstanding the
foregoing, this provision shall not apply to the construction, renovation, alteration, remodeling,
expansion, repair or maintenance of improvements installed by or on behalf of Texas Roadhouse on
the CNL Parcel pursuant to the Texas Roadhouse Lease.
3.7 Resoonsibklity of Texas Roadhouse. Notwithstanding anything to the contrary
contained herein, Texas Roadhouse shall'be responsible for all maintenance and repair obligations
imposed on the CNL Parcel for so long as the Texas Roadhouse Lease remains in effect or until
Texas Roadhouse abandons the premises, whichever is earlier, and CNL, its successors and assigns.
shall be responsible thereafter.
ARTICLE IV
INDEMNIFICATION
4.1 Indemnification: Each Owner shall indemnify, defend and hold harmless the other
Owners from and against all claims, and all costs, expenses, liabilities and reasonable attorneys' fees
incurred in connection with any claims (including any action or proceeding brought thereon), arising:
(a) from or as a result ofany accident, injury, loss or damage whatsoever caused to a natural person,
or to the property of any person, alleged to have occurred on any portion of the Parcel owned by such
indemnifying Owner or any easement areas created by this Agreement; or (b) fro in or as a result of
any act or negligence of the indemnifying Owner, excepting, in each such case, claims, accidents,
injuries, loss or damages arising from or as a result of any act or negligence of the indemnified
Owner or such indemnified Owner's agents, contractors, servants. employees, concessionaires,
licensees, tenants or subtenants.
ARTICLE V
TERMINATION
5.1 Termination: Save and except for the Access Easements and Stormwater Drainage
Easements created herein which shall be permanent and perpetual, the remaining provisions of this
Agreement shall be for an initial term of twenty-five (25) years. commencing on the Effective Date
of this Agreement and expiring on the date which is twenty-five (25) years after such Effective Date
(^i rtsp ion Date"). This Agreement shall automatically renew on the Expiration Date for a period
of ten (10) years unless all of the Owners of the Parcels mutually agree in writing to terminate the
same prior to such Expiration Date, and this Agreement shall continue to automatically renew for
7
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J crw~v i 11 COVENANTS AN^vccr:I!FJQNSAFFECTINGLAND - PaLeS
F,1TanRoWhnu+elCoae{esttllonTXWoalded+^dooa+•l.vr 61037.0121
0709503
essive periods of ten (10) years each on each anniversary of the Expiration Date
mers of the Parcels mutually agree in writing to terminate this Agreement. 4 1
ARTICLE VI
MISCELLANEOUS
6.1 Declarations Covenants AereementsandEasements Runwith theLand: Theterms
and provisions of this Agreement and all of the declarations, covenants and agreements set forth
herein shall be deemed to create easements, restrictions, benefits, obligations and servitudes upon
the Parcels (running with all land comprising same) and shall be and remain a burden and benefit
thereon (binding and benefttting all owners, users and occupants thereof) at all times for so long as
this Agreement remains in efYecL It is the intention of Delmar to establish a common scheme of
covenants and restrictions applicable to all of the Parcels. The easements and rights granted herein
and oil of the declarations, covenants and obligations of each Owner pursuant to this Agreement,
as well as those of the Owner's respective successors and assigns, shall be perpetual in duration,
provided that the same shall terminate in the event that this Agreement shall terminate or as may be
otherwise specified herein.
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1
62 Successors andAssigns : This Agreement shall be binding upon and shall inure to the
benefit of each of the Owners and their respective heirs, legal representatives, tenants, subtenants,
successors, successors-in-title and assigns.
6.3 No Puhlic Gift or Dedication: Nothing contained in this Agreement shall be deemed ?
to be a gift or dedication of any portion of the Parcels, or Of any property covered or benefitted
hereby, or portion thereof, to any governmental authority or the general public or for any public use
or purpose whatsoever, it being the intention and understanding of the parties hereto that this
Agreement shall be strictly limited to and for the purposes herein expressed.
6.4 ecordin : This Agreement shall be recorded in the official public records and/or
applicable real property records of the city, county and/or state where the Parcels is located.
6.5 No Joint Venture or Partnership: The parties do not intend by this Agreement to
create a partnership or joint venture or other business association or entity of any nalrrc among
themselves or any subsequent Owners of all or any part of the Parcels. No Ownerof any portion of
the Parcels is authorized to act as agent for any other Owner or to otherwise act on behalf of any
other owner, except as may be otherwise expressly provided herein.
6.6 No Waivers: Any indulgence or departure at anytime or by any Owner from any of
the provisions hereof or failure by any Owner to exercise any of its rights and remedies shall not
modify the same or relate to the future, or waive future, compliance therewith by any other Owner.
EASEMENTS WITH COVFNANTS AND RWRIMONS AFFEMNG LAND - P&S"
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6,7 e d e :This Agreement may not be amended or modified except by a written
instrument signed by all the owners of each Parcel.
7
8 r ew Govemine: THE LAWS OF THE STATE OF TEXAS SHALL GOVERN
6
,
THE INTERPRETATION,VALIDITY AND ENFORCEABILITY OFTHIS AGREEMENT.
6.9 CapAi Titles, headings or captions of articles or paragraphs contained in this
reement are inserted only as a matter of convenience and for reference, and in no way define,
A
g
limit, extend or describe the scope of this Agreement or the intent of any provisions hereof.
6.10 n a : Each Owner may encumber its respective Parcel owned or leased by it
the interest of any mortgagee thereunder
however
vided
,
,
pursuant to a mortgage or mortgages; pro
shall be expressly subordinate to this Agreement unless otherwise mutually agreed in writing by the
Owners of all of the Parcels.
6,11 vMultinle Counicmarts: This Agreement maybe executed in any number of identical
hall be deemed an original document and all of which
counterparts, each ofwhich for all purposes s
together shall constitute but one and the same document; but, in making proof of this Agreement,
it shall not be necessary to produce or account for more than one such counterpart.
6,12 AngMpy Fees. In the event an Owncr defaults upon any of its obligations, or
the other Owner shall be entitled to any
d hereunder
t
,
e
unlawfully interferes with the easements gran
al and equitable remedies available, and the prevailing Owner in any litigation shall be
and all le
g
entitled to recover from the other Owner all reasonable attorney fees and expenses incurred as a
result of such default or unlawful Interference.
(SIGNATURES ON FOLLOWING PAGES)
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EASEMEh:`3 wrT11 COVENANTS AND RESTnICrtONS AF tNG LANG - rsgO
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IN WITNESS W HEREOF, the parties have executed this Agreement on the data set forth
3
7
in the acknowledgments below, but to be effective as of the day and year first above written.
DELMAR BARONHEAD I, LTD.,
a Texas limited partnership
By: Delmar Baronhcad OP #1, LLC
0
a Texas limited liability company
1
ATTEST:
Its: General Partner
2
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y
Name• FFA.d~ A~~~iacr~.4adLa r
Its: f ~Fs io6~-r
STATE OF TEXAS §
COUNTY OF JAkj A5 §
4,~ the undersigned notary public for and in the state aforesaid, do hereby certify that
FRANK LIHA~COPM DS personally appeared before me this day and acknowledged that"he is
the Q~si T of DelmarBaronhcadGP#I,LLC, a Texas limited liability company, and
that by authority duly given and as the act of said company and as the act of Delmar Baronihead I,
Ltd., a Texas limited partnership, of which said company is the general partner, the foregoing
instrument was signed in its name.
WITNESS my hand and Notarial Seal this ~9[ kday of 2000
®r, a c~;e eset!;~ts
k;w Cca:ua7e,us taryPublic
's: ?C!r~::Xft"stCSdOfr21-0J
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K:
SFINENTS WI -8 COV NANTB AND R ton m-5.w NSNS A~ LAND - Pqe S
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0709503
TEXAS ROADHOUSE OF COLLEGE STATION, LTD.
7
7
a Kentucky limited partnership
By: TEXAS ROADHOUSE HOLDINGS LLC,
13
a Kentuckylimited liability company
Its: General Partner
0
By: WKT Restaurant Corp.,
a Kentucky corporation
Its: Manager
ATTEST: ~5.6H1fJ~lf~C-L~ Na'
Name. ~i4I4eRt~eyler
its: 'Pfesiden (h:ti'F'r.ows:et Q~:4f
COMMONWEALTH OF KENTUCKY §
COUNTY OF JEFFERSON §
1, the undersigned notary public for and in the state aforesaid, do hereby certify that
N41llia03 ReA, V . personally appeare d beforeme this day and acknowledged that (s)he is the
of WKT Restaurant Corp., a Kentucky corporation, and that by authority
duly given and as the act of said corporation and as the act of Texas Roadhouse Holdings LLC, a
Kentucky limited liability company, of which said corporation is the Manager, and as the act of
Texas Roadhouse of College Station, Ltd., a Kentucky limited partnership, ofwhich said company
is the general partner, the foregoing instrument was executed in its name.
WITNESS my hand and Notarial Seal this ~ day of - .2000.
Notary Public
My Commissions Expires:
MM I C104 =*a U0100=3M
AN AM Ron-- n_ r" - ~
Notary PuWio, State at large. KY
* CamlltWM akin Feb A MM
EASEMENTS wlTll COVENANTS AND R°CTRICr1r AFFECTING ]AND - Page 9
F.ITaoRolftu Wc.oaepSUOoaTXWDM%dL ctua e"'ar'S.vwpd 61017.0121
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0709503
CNL APF PARTNERS, LP
a Delaware limited partnership dlbin in
North Carolina as CNL APF Partners,
Limited Partnership
By: CNL APF GP Corp.,
a Delaware corporation, as general partner
By:
,C.>f
Name:
Its:
STATE OF FLORIDA §
COUNTY OF ORANGE 4
I, the and rsi ed1notary public for and in the state aforesaid, do hereby certify that widgd that
hdshc is
d personally came before me this day and nckno ration, general partner
Secretary ofCNLAPFGPCorp.,aDelaware coTo ivennnd
authority duly, the that by
er of
of CNL APF PARTNERS, LP, a Delaware limited parq*mt iopmutatscapacity as general parts
as the act of said corporation and as the act of said 4 cxecutedinitsnamebyits
said limited partnership, the foregoing instrumentwase><e ~rr~ef~t~
WITNESS my hand and Notarial Seal this o701y of 2000.
Daaw_ f ~Q
Notary lie
00 1 &MM E aN
my Commissions Expires: com "Wo"ccwMs
Fspi.. Nor 12. ]001
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0709503
JOINDER OF MORTGAGF.F,
k ,bencfciaryundcrthat
$aNw^ Ban
FIRST AMERICAN BANK , 29, 1999, recorded in Volume
certain Deed of Trust dated September 29, 199g, rement to Page 78 in the evidence its consent
Records of Brains County, Texas joins in the execution of this Agreement
the terns of the Agreement and subordination of its security interests thereto. ssB~
FIRST AMERICAN BANK TEXAS,IM
a^s(.d~ 5a~ Ci~►~~-
ATTEST: By: G
Name* t - AOmvr'
Its: If?G~ ~oc~rnFt~f'
STATE OF Tazn~~
COUNTY OF D r tom- § 6`j
1, the undersigned notary public for and in the slat foresald, do hereby certify that
~ fprti q',ewtjrl --personally appeared before me is day and acknowledged that (s)hc
is the Vice Ptitsor0- of First American Bank Texas, and that
- foregoing instrument was
by authority duly given and as the act of said s the rvrr s~~
signed in its name.
[ Ewa ,
WITNESS my hand and Notarial Scal this -ZS 19. day of 2000.
ZIE00
My Commissions Expires:
r-y JL
Notary Public
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0709503
f.XMBITA
~F
List of Prohibited Uses
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
I1.
12.
13.
14.
15.
16.
17.
The following uses and occupancies shall constitute "Prohibited Uses,underthe Agreement:
Automobile washing station (except as an incidental part of a service or gas station)
Masseur salon
Public Bath
Bowling alley
Billiard or pool stall
Animal hospital or kennel
Tavern or bar that this
Any mobile home park, trailer court, labor camp, juttityaid, or stockyard (except
provision shall not prohibit the temporary use of construction trailers during periods of
construction)
Any dumping, disposing, incineration, or reduction of garbage (exclusive of dampsters
located to the rear of any building provided the same are suitably screen)
Any rite sale, bankruptcy sale (unless pursuant to a court order), "going out ofbusine&'sale,
or auction house operation
Animal raising facilities
Any mortuary
Any establishment selling or exhibiting pornographic materials
Any x-rated theater
Any nude modeling studio
Any establishment with nude or semi-nude waiters, waitresses or entertainers
Any use which creates offensive odors which are noticeable outside of any building, or any
vibration, noise or sound which can be felt or heard outside of any building and which is
or noise
Offensive due to
produced by normal re aurant operations (including drive shrillness through operations shall not be
deemed offensive.
7
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tr H !L
V
49
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G IB T , List of Prohibited Uses - Pagc Solo
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,
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