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HomeMy WebLinkAbout11-00500077- 00076983 0 0 • BILL & RETURN TO: Do Bk Vol P9 BRAZOS COUNTY ABSTRACT COMPANY 01062667 OR 4663 6' GF# (18987 1-K AFTER RECORDING RETURN TO: Robert D. Burton, Esq. Armbrust & Brown, LL.P. 100 Congress Ave-, Suite 1300 Austin, Texas 78701 FIRST AMENDMENT TO DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS (Brazos County, Texas) Cross k e uCe to that certain Declaration of Covenants, Restrictions and Easements. recorded in Volume 7498, Page 255, Official Records of Brazos County, Texas. (000696096)384175-303117/2010 0 Doc Bk Vol Ps) 01062667 DR 9663 if FIRST AMENDMENT TO DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS This First Amendment to Declaration of Covenants, Restrictions and Easements (the "Amendment") is made by THE WOODLANDS OF COLLEGE STATION MASTER CONDOMINIUM COMMUNITY, INC., a Texas non -profit corporation, (the "Association "), BRAZOS COUNTY MARKETS, LTD, a Texas Limited partnership ("BCML"), and WOODLANDS OF COLLEGE STATION, L.P., a Texas limited partnership ("WCSLP"), and is as follows: RECITALS: A. WCSLP and BCML caused to be recorded that certain Declaration of Covenants, • Restrctions and Easements. recorded in Volume 7498, Page 255, Official Public Records of Brazos County, Texas (the "Declaration "). B. On the date the Declaration was recorded in the Official Public Records of Brazos County, Texas, WCSLP was the owner of Lot One, The Woodlands of College Station, a subdivision in Brazos County, Texas, according to the map or plat (the "Original Plat") recorded in Volume 7420, Page 255, in the Official Public Records of Brazos County, Texas, and BCML was the owner of Lot Two, Lot Three and Lot Four, on the Original Plat. The Original Plat has been replaced by that certain Final Plat Being a Replat of The Woodlands of College • Station Subdivision, recorded in Volume 8939, Page 173, Official Public Records of Brazos County, Texas (the "Current PIat "). Lot One, Lot Two, Lot Three, and Lot Four on the Original Plat are now known and described on the Current PIat as Lot 1R, Lot 2R, Lot 3R, and Lot 4R, respectively. Lot 1R is the "Residential Property" as such term is defined in the Declaration. Lot 2R, Lot 3R, and Lot 4R are the "Commercial Property" as such term is defined in the Declaration. C. WCSLP submitted Lot IR to that certain Declaration of Condominiums Re • for The Woodlands of College Station Master Condominiums, recorded in Volume 8145, Page • 143, Official Public Records of Brazos County, Texas (the "Residential Condominium Declaration "). In accordance with the Residential Condominium Declaration, the Association was created for the purpose of administering the property submitted to the terms and provisions of the Residential Condomirdinn Declaration D. Section 4.7 of the Declaration provides that the Declaration may be amended by the agreement of the owner of the "Residential Property" and the "Commercial Property." • Section 4.7 further provides that if the Residential Property is submitted to the condominium form of ownership, the property owners association formed pursuant to such submission may amend the Declaration on behalf of all owners of the Residential Property. BCML. is the current owner of the "Commercial Property", as such term is defined in the Declaration. (00060000 61 1 FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND EASEMENTS 334175-3 03/17/201 0 _ I 0 Doc 8k Vol Fs 01062667 OR 9663 71 E. The Association and BCML desire to amend the Declaration as set forth in this Amendment WCSLP executes this Amendment for the purpose of evidencing its consent to this Amendment and the agreements set forth in Paragraph 2 below, and for the purpose of accepting the easement described in Paragraph 4 below. NOW THEREFORE, the Declaration is hereby amended as follows: L Definitions. A. Notwithstanding any provision in the Declaration to the contrary: (i) the "Residential Property" as such term is used and defined in the Declaration, shall mean and refer to Lot 1R of the Current Plat; and (ii) the "Commercial Property" as such term is used and defined in the Declaration, shall mean and refer to Lot 2R, Lot 3R and Lot 4R of the Current Plat B. Notwithstanding any provision in the Declaration to the contrary: (i) the term "Tract Two" in Section 1.1(a) of the Original Declaration, shall mean and refer to Lot 2R of the Current Plat; and the teen "Tract One in Section 1.1(a) of the Original Declaration, shall mean and refer to Lot 1R of the Current Plat 2 Access Easements. Section 1.1 of the Original Declaration is hereby amended as follows: A. $ectiort 1.1(al. Notwithstanding any provision in Section L1(a) of the Declaration to the contrary, Section 1.1(a) of the Declaration is hereby amended as follows: (1) The "Access Easement" shall mean and refer to the roadways presently constructed on Lot 2R and providing access from Southwest Parkway and Harvey Mitchell Parkway, existing public thoroughfares, as depicted on Exhibitt ". attached to this Amendment "Improvements" shall mean and refer to the construction of the project contemplated by City of College Station, Texas Zoning Ordinance No. 2010 -3224. (2) Except as otherwise provided in Items (3), (4) and (5) below (and, in any event, subject to the conditions set forth in Item (7) below), or approved in advance and in writing by WCSLP, the owner of the Commercial Property will in no event be permitted to use the Access Easement for the purpose of constructing Improvements on the Commercial Property. (3) During construction of the Improvements upon the Commercial Property identified as "Phase 1" on Exhbit "BJ' attached hereto (the "Phase 1 (00059000 6) 2 FIRS!' AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND EASEMENTS 334175-303/17/2010 y v Q Doc Ek Vol P 01062667 DR 9663 '2 Construction "), in no event shall the owner of the Commercial Property be permitted to utilize the roadway constructed on Lot 2R and providing access from Southwest Parkway (the "SWP Roadway"), depicted on Exhibit attached hereto, in any manner related to construction of improvements on the Commercial Property. However, during Phase 1 Construction, the owner of the Commercial Property will be permitted to utill7e the roadway constructed on Lot 2R and providing access from Harvey Mitchell Parkway, depicted on Ex}u'bit "C' attached hereto (the "IIM Roadway "), in connection with constructing improvements on the Commercial Property, subject to the following tenors and conditions (i) The owner of the Commercial Property will be obligated to r0mit to WCSLP, in advance and on a monthly basis, an access fee equal to $12,500.00 (the "HM Roadway Access Fee"), which amount shall be non - refundable and considered fully earned upon receipt by WCSLP. The HM Roadway Access Fee will allow construction access via the HM Roadway for a thirty (30) day period from the date such HM Roadway Access Fee is paid to WCSLP. Notwithstanding the foregoing, at such time as the owner of the Commercial Property has the right to utilize alternate access to the Commercial Property, other than by means of the HM Roadway, in accordance with applicable governmental requirements, access to the HM Roadway as provided herein for construction purposes will terminate, except for use by light trucks and passenger vehicles in connection with construction subject to the conditions set forth in Item (7) below (which shall be permitted without payment of the HM Roadway Access Fee). (ii) The owner of the Commercial Property will be required to erect and maintain, at such owner's sole cost and expense, barricade fencing within or adjacent to the traffic circle on the SWP Roadway ( "SWP Traffic Circle") as necessary to prevent access from the SWP Roadway in connection with construction on the Commercial Property. Such barricade fencing shall be of a design and construction as is customary in like commercial projects. At such time as the "Leasing Center" serving the Commercial Property is open, the owner of the Commercial Property will relocate the barricade fencing so as to permit free and unimpeded access to the Leasing Center via the SWP Roadway but prohibit construction access to other portions of the Commercial Property via the SWP Roadway. As each building adjacent to the SWP Traffic Cirde is completed, the owner of the Commercial Property may further relocate the barricade fencing so as to permit free and unimpeded access to the Leasing • Center and each such completed building via the SWP Roadway, but to prohibit construction access to other portions of the Commercial Property via the SWP Roadway. {00059000 5} 3 FIR.S'TAMENOMENT TO DECLARATION OF COVENANTS, CONDITIONS AND EASEMENTS 384175 -3 03/17/2010 0 • • Doc Bk Vol F 01042667 OR '663 3 (4) During construction of thee Improvements upon the Commercial Property identified as "Phase 2" on Exhibit "Id", attached hereto (the "Phase 2 • Construction "), in no event shall the owner of the Commercial Property be permitted to uti i,P HNI Roadway in any manner related to construction of improvements on the Commercial Property. However, during Phase 2 Construction, the owner of the Commercial Property will be permitted to the utilize the SWP Roadway, in connection with constructing improvements on the Commercial Property, upon payment in advance and on a monthly basis of an access fee equal to $6,250.00 (the "SWP Roadway Access Fee "), which amount shall be non - refundable and considered fully earned upon receipt by WCSLP. The SWP Roadway Access Fee will allow construction access via the SWP Roadway during the Phase 2 Construction for a thirty (30) day period from the date such SWP Roadway Access Fee is paid to WCSLP. At such time as the owner of the Commercial Property has secured the right, in accordance with applicable governmental requirements, to access the Commercial Property directly from Wellborn Road as shown on Exhibit "C ", access to the SWP Roadway as provided herein shall terminate, except for use by light trucks and passenger vehicles in connection with construction subject to the conditions set forth in Item (7) below (which shall be permitted without payment of the SWP Roadway Access Fee). (5) During construction of those improvements upon the Commercial Property identified as "Outlots" an Exhit "B ", attached hereto (the "Outiot Construction"), the owner of the Commercial Property shall be permitted to use the HM Roadway in connection with construction, subject to the terms and conditions set forth in Item (7) below. (6) During Phase 1 Construction and Phase 2 Construction, the owner of the Commercial Psuperty will be required to use diligent and good faith efforts to procure all governmental permits and other approvals necessary to secure alternate construction access to the Commerdal Property, expressly including the access from Wellborn Road as described in Item (4) above during Phase 2 Construction, (7) The use of the Access Easement in connection with any construction, repair or maintenance activities ("construction activities ") upon Lots 1R, 2R and 3R by an owner (each a "Constructing Party') shall at all times be subject to the following terms and conditions: (i) The Constructing Party and all persons engaged on its behalf in connection with construction activities will be prohibited from (00064000 6) 4 FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDMONS AND EASEMENTS 384175-3 03/17/2010 1. • y ® 0 - Doc Bk Vol P9 011362667 OR 9663 7. parking on or otherwise obstructing, the Access Easement and will use the Access Easement in such a way so as not to unreasonably interfere with use of the Access Easement by owners and tenants within the Residential Property and Commercial Property and their permit .tees. (ii) During construction of the Improvements, the owner of the Commercial Property, at its sole cost and expense, will clean each roadway used by it for construction access daily after use. (iir) The Constructing Party, at such party's sole cost and expense, will be required to promptly restore and repair all damage to any roadways within the Access Easement except for damage which has been: (i) identified in a written notice, delivered from the Constructing Party to the non - Constructing Party prior to commencement of any construction activities, as having occurred prior to commencement of construction activities; and (ii) demonstrably caused by a non - Constructing Party or its tenants, permittees, representatives or agents. (8) In conjunction with the Phase 1 Construction or the Phase 2 Construction, the owner of the Commercial Property, without payment of any access fee to WCSI.P, shall be entitled to access the Access Easement as necessary to construct modifications to traffic circle curb stractnres, install certain utility crossings and multi -use paths (and related crossings over access roads), and • conduct such other construction as may be required by the City of College Station in connection with development of the Commercial Property. In connection with the foregoing described activities, the owner of the Commercial Property shall be obligated to diligently prosecute such construction to completion and use reasonable and good faith efforts to stage such construction so as to occur during off -peak hours and periods of vacation or holiday under the Texas AdrM University academic calendar. S. Section 1.1(d). Section L1(d) of the Declaration is hereby deleted in its entirety and replaced with the following. (1) Notwithstanding any provision in Section 1.1(a) of the Declaration to the contrary, the provisions set forth below shall govern the maintenance of the roadway constructed within the Access Easement and the budgeted expenses and cost sharing in connection therewith. (2) The owner of Lots 2R and 311 shall maintain the roadway constructed within the Access Easement from the public thoroughfares to the "maintenance termination point" depicted on Exhibit "C" mud landscaping (00069000 6} 5 FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDEMNS AND EASEMENT'S 3941753 03/1711010 Doc 8k Vol Ps 01062667 DR 9663 75 within or irrunediately adjoining such Access Easement in a first rlazs condition similar to other first class condominium and mixed -use projects in College Station, Texas (which condition the parties agree exists as of the date of this Amendment). The owner of the Residential Property shall maintain, at its sole cost and expense, the portions of the roadway constructed within the Access Easement between the "maintenance termination point" and the Residential Property and an easement over such portion of the roadway is reserved to the owner of the Residential Property for such purpose_ (3) On an annual basis, on or before October 1 of each year, the owner of Lots 2R and 3R will provide the Association with a calendar year budget of the estimated costs to maintain the roadway constructed within the Access Easement and landscaping within or immediately adjoining such Access Easement for the next calendar year (the "Budget"). (4) The Budget shall initially provide for a reserve fund equal to twenty percent (20 %) of the estimated annual maintenance costs. The reserve fund will include the estimated amount to perform capital repairs to the roadway improvements within the Access Easement, which fund will only include the estimated pavement and curb replacement costs. The replacement costs will be apportioned equally among each year of the remaining life of each component after taking into account a reasonable assumed interest rate and a reasonable cost -of- living adjustment WCSLP will be permitted to cause to be prepared a reserve study by a licensed engineer or reserve specialist for the pavement and curb improvements at any time but no more frequently than once every five (5) years, with the costs to prepare the reserve study equally apportioned between WCSLP and the owner of the Commercial Property. If a reserve study is prepared as contemplated herein, the reserve account will be adjusted to reflect the recommendations of the preparer. If any surplus exists in the reserve account as a result of such adjustment, the excess amounts will be used to reduce operational expenses for the next calendar year. (5) No later than thirty (30) days after the date of this Amendment and no later that October 1 of each year thereafter, the owner of Lots 2R and 3R will provide to the Association a copy of the Budget The Association will have ten (10) days to review and approve the Budget which approval will not be unreasonably withheld, delayed or conditioned. (6) Within thirty (30) days after the end of each calendar year, the owner of Lots 2R and 3R will deliver to the Association a comparison of the actual expenses incurred during the prior twelve month period to the estimated expenses as indicated in the Budget (the "Reconciliation "). The Reconciliation {ooa69o00 6) 6 FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND EASEMENTS 384175.3 03/17/2010 r n Doc Sk Vol N 01062667 DR 9663 ;6 . will be prepared in accordance with sound accounting principles consistently applied. In the event that the estimated expenses as indicated in the Budget exceed the actual expenses incurred, the owner of Lots 2R and 3R will pay to the Association an amount equal to sixty -seven percent (67%) of the difference between budgeted expenses and the actual expenses within ten (10) days after the Reconciliation is required to be delivered to the Association. In the event that the actual expenses exceed the budgeted expenses, the Association will pay to the owner of Lots 2R and 3R an amount equal to sixty -seven percent (67%) of the difference between actual expenses and the budgeted expenses within ten (10) days after the Reconciliation is required to be delivered to the Association_ (7) In the event that the Association believes that the owner of Lots 2R and 3R has failed, in any respect, to perform the maintenance as required herein, the Association will have the right, after thirty (30) days written notice to the owner of Lots 2R and 3R (which notice will contain a written proposal for performing the necessary maintenance and setting forth the costs thereof), to perform any maintenance required herein to be performed by the owner of Lots 2R and 3R; provided, however, that, in cases where a c cumstance is likcely, in the Association's reasonable judgment to cause imminent damage to person or property, the Association may cause such circornstauce to be remedied upon providing at least twenty -four (24) hours' notice of the action to be taken by the Association to prevent imminent threat to person or property. The owner of Lots 2R and 3R shall promptly reimburse the Association, upon request, for thirty- three percent (33%) of any expenses incurred by the Association in connection with maintenance perforated by the Association as provided herein (8) If either party falls to promptly pay the amounts due to the other party under this Amendment such amounts shall accrue interest at a rate of twelve percent (12 %) per annum. 3. Utility Easements. Section 13 of the Original Declaration is hereby amended as follows: • A. Section 1.3(a). Notwithstanding any provision in Section 1.3(a) of the Declaration to the contrary, the Association will at no event be required to grant utility easements to the owner of the Con nerdal Property if the easements so required will materially adversely affect Lot 1R or any improvements constructed thereon. 4_ Sign Easement- Section 1.4 of the Original Declaration is hereby deleted in its entirety and replaced with the following. Section 1.4 Sign Easement (a) BCML hereby grants and conveys to WCSLP an easement over and across those portions of Lot 2R ("Sign Easement Areas "), as more {00069000 61 7 • FIRST AMENDMENT TO DECLARATION OF COVENANTS, CoNDmONS AND EASEMENTS 384175 -3 33117121)I0 0 Doc 81( Vol F. 0 1062667 OR 9663 r7 • particularly described on Exhibit "D" attached hereto and subject to relocaton as provided herein, for the purpose of installation, operation and maintenance of one sign on each of the Sign Easement Areas for the benefit of the Residential Property and Commercial Property (collectively, the " Signage" or each a "Sign"). An access easement over and across Lot 2R is also hereby granted and conveyed to WCSLP to the extent reasonably necessary or required to construct or maintain the Signage as provided herein. The easements granted herein are perpetual and non - exclusive and WCSLP may assign, exclusively or non - exdusively, the easements granted herein to the Association or any assignee of declarant's rights under the Residential Condominium Declaration. At any time before construction of the Signage, with the prior written consent of WCSLP (which consent shall not be unreasonably withheld, conditioned or delayed), the owner of Lots 2R and 3R may adjust the Sign Easement Areas to accommodate and facilitate the development of Lots 2R and 3R and/or comply with the requirements of the City of College Station; per, however, the square footage of the Sign Easement Areas will not be reduced and the Sign Easement Areas will remain in the same general vicinity of the sign Iocationis depicted in the zoning ordinance creating the Planned Development District on the Commercial Property. (b) Each Sign will be designed and constructed according to the drawings attached in Exhibit "E ". Each Sign may be illuminated, and will comply with the ordinances of the City of College Station, including, without limitation, Ordinance No. 2010 -3224, as amended. Either the owner of Lots 2R and 3R or WCSLP may construct a Sign after giving the other party at least thirty (30) days' notice of its intent to construct the Sign and the estimated cost to construct the Sign - If WCSLP or its assigns constructs a Sign, the design, materials and location of the Sign must be approved by the owner of Lots 2R and 3R before construction of the Sign commences. The party not constructing a Sign will reimburse the party constructing the Sign for fifty percent (50%) of the actual costs incurred to construct the Sign within thirty (30) days after request. Any sign panels to be included on a Sign by WCSLP or its assigns will comply with the ordinances of College Station and will be reasonably tasteful in design and content. Any sign panels included on a Sign by the owner of Lots 2R and 3R will comply with the ordinances of College Station and will be reasonably tasteful in design and content (c) The top panel on each Sign (front and back) shall be for the benefit of the Residential Property, and the bottom panel on each (front and back) shall be for the benefit of the Commercial Property. The owner of Lots 2R and 3R will maintain each Sign in a first class condition and WCSLP or its assigns will reimburse the owner of Lots 2R and 3R for fifty percent (50 %) of the actual costs 100369000 6) 8 FIRS!' AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND EASEMENTS 384175 -3 03/17/2010 ' 0 • ;.,'..` • • Doc 8k Vol Ps 01062667 OR 9663 incurred for such maintenance and for actual costs of illuminating the Signs within thirty (30) days after request. (d) BCML and WCSLP agree that the Commercial Property and Residential Property are one building plot for purposes of Article 7 of the Unified Development Ordinance of College Station Each party and its successors and assigns agree, at the request of the other party or its successors and assigns, to provide its consent on any plat or other instrument required by the City of College Station to evidence that the Commercial Property and the Residential Property are one building plot If a party fails to provide its consent within ten (10) days after written request the requesting party may execute such plat or other instrument on behalf of the other party. 5. Restrictive Covenants. A. Section 2.1(a)(yi1. Section 2.1(a)(vi) is hereby deleted in its entirety and replaced with the following: (vi) In no event will the Residential Property or Commercial Property be used as: (a) a business that specializes in bankruptcy or liquidation sales or the selling of fire damaged items; (b) an auction house, flea market or pawn shop; (c) a kennel or other business involving the boarding or care of animals; (d) an establishment for sale of automobiles, trucks, mobile homes, or recreational motor vehicles; (e) a dance hall (except a professional dance instruction studio or business in which dancing is ancillary to the primary purpose); (f) a mortuary, crematorium or funeral home; (g) a dry cleaning plant central laundry or Laundromat (unless themed with another use, e.g. Harvey Washbangers); or (h) a fire station. B. Section 2.1(a)(f1. Section 21(a)(i) is amended to provide the following: Nothing contained in Section 21(a) of the Declaration will prevent the normal and customary operations of restaurant establishments on the Commercial Property or prohibit the use of an outdoor speaker system in the commercial and mixed use areas on the Commercial Property or in the community areas of the Commercial Property and Residential Property. 6. Miscellaneous. Any capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Declaration Unless expressly amended by this Amendment; all other terns and provisions of the Declaration remain in full force and effect as written, and are hereby ratified and confirmed. In the event of a conflict between the terms and provisions of this Amendment and the Declaration, the terms and provisions of this Amendment shall control. 100069000 6) 9 PIRSI' AMENDMENT TO DECLARATION Or` COVENANTS, CONDITIONS AND EASEMENTS 384175.3 05117/2010 • �� 1 Doc DR Vol P 41062667 OR 9663 9 7. Approval, Notwithstanding anything in the Declaration or this Amendment to the contrary, whenever a party is requested by the other party to give its consent approval or agreement, such consent, approval or agreement will not be unreasonably withheld, conditioned or delayed. A party seeking the other's consent approval or agreement shall do so in writing and the other party shall have five (5) business days to respond in writing with its approval or objection. If a party fails to deliver an objection within such five (5) business day period, such party will be deemed to have given its consent, approval or agreement_ IN WITNESS WHEREOF, this instnunent is effective on the date fully executed by the parties [SIGNATURE PAGES FOLLOWS] (00(069600 6) 10 FOIST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND EASEMENTS 384175 -3 03/172010 • • Doc ek Vol N 01062667 OR 9663 8J ASSOC L4TIDN I NATURE PA E T_Q FIR A MENDMENT TO DECLARAT[ON • OF COVENANTS, RESTRICTIONS AND EASEMENT ASSOCIATION_ THE WOODLANDS OE COLLEGE STATION MAS 1 }.R. CONDOMINIUM COMMUNITY, INC., a Texas non- profit corpoir B Printed Name: [ -0,.'t "AS w - Title: THE STATE OFGarr.J {ei § COUNTY OF 1. a c.- § This instrument was acknowledged before me this 3 day , 2010, by 1 ;1v\RC.1^,- pre 1�c• -r of The Woodlands of College Station Master Condominium Community, Inc, a TP n non -profit corporation, on behalf of said non -profit corporation. i ( • •tary Public Si; . Maiodis Samar my tiA r t 20 4 {0006900D 6} FIRST ANE DMRiT TO DECLATtATION OF COVENANTS, C NDrnONS AND EASEMENTS 384175 -3 03/ / 72010 • 1 ® 0 Dot Ok Vol pe 010.62667 00 9663 J3CML SIGNATURE PAGE TO FIRST AMENDMENT TO DECLARATION OP COVENANTS, RESTRICTIQNS AND EASEMEN a BCML: BRAZOS COUNTY MARKETS, LTD, a Texas limited partnership By: Brazos Coimty !Markets Management, LLC, a Texas Iimi d liability company By ILntedN : .S4144 Title; 1V1 ltiA, f_. THE STATE OF> ji &§ COUNTY OF -fi - - § This instrument was aclmowledged before me this 3 day of .k� 21110, by +vt of 1 - a..19Gr•- of Brazos County Markets Management LLC, a Texas limited liability company, general partner of Brazos County Markets, Ltd_, a Texas limited partnership, on behalf of said entities. A1.. /_u� . (SEAL) r Lary public Signa M do Tanner �e Alh�r omm ar 5th, a {OOO69M) 6) FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND EASEMENTS 384175-3 03/17/2010 0 Doc Bic VoI 01062667 OR 9663 P WCSLP SIGNATURE PAGE TO FIRST AMENDMENT TO DECLARAT[ON OF COVENANTS, RESTRIII(ONS AND EASEMENT$ WCSLP: WOODLANDS OF COLLEGE STATION, L.P., a Texas limited partnership By: Woodlands of College Station GP, LLC, a Texas limited liability company, its General Partner By. Printed e:"rj, IM A4 V.!. S a0{{ Title: CPI iN.i rel. 1 pp, THE STATE O , l.t § COUNTY OF Gt.t P--60∎ § �—� This instrument was acknowledged before me this ? j day of,)v+.Ie • 2010, by 56G4t pAt 1 OOdlands of College Station GP, LLC, a Texas !nmited liability comp y, General & ParMer of Woodlands of College Station, L.P., a Texas limited partnership, on behalf of said limited liability company and limited partnership. 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The easement area far Sign 31 writ be approximately 6 12 and the easement area for Sign 32 will be approximately 6' x 14'. • 1 locoomeo 6LZJ AMENDMENT TO DECLARATION OF COVENANTS, CONDMONS AND EASEMENTS 384175-3 0647/2010 0 Doc Bk Vol Ps ,. .. 1. 92 • SIT "E" SIGNAGE ELEVAITONS Filed for Record in BRAZOS COUNTY On: Jun 04.2010 at 11:35A As a NO LABFL RECORDING Document Number: 01062667 Amount 112.00 Receipt lhrabet — 391452 By, Seth Gallioa STATE OF TEXAS COUNTY OF . • OS 1 hereby certify that this imstr • t uas filed an the date and time stamped her-. b9 ►e and was duly recorded in the volume and ease of the Official Public retards of: BRAIGS COUNTY as starved hereon bs me. Jun 04,2010 HONORABLE KAREN HCOUEEH, COUNTY CL:, BRAZOS COUNTY Noossa0a 6 1PIPS ?AhiEND4tE1YF TO DEQ.A.RR jlcJN OP 384175.3 031l7/2AI0 COVENANT CONDITIONS AND EASEMENTS E ' A + 0 ., i Doc Bk Vol P 01062667 OR 9663 93 i 1 _ 14g. ,,,,..... . .., ' -4 \ .c! o� . ° off ; , , .:. ":„ .4" :' - '4.'....:1-..' 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DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS THIS DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS (hereinafter called this "Declaration ") is made and entered into as of the itiday of August, 2006 by WOODLANDS OF COLLEGE STATION, L.P., a Texas limited partnership and BRAZOS COUNTY MARKETS, LTD., a Texas limited partnership (hereinafter collectively referred to herein as "Declarant ")_ WITNESSETH_ WHEREAS, Woodlands of College Station, L.P. is the owner of fee simple title to those certain tract or parcel of real property being known and designated as Lot One (hereinafter called the "Residential Property ") as shown on aplat entitled The Woodlands of College Station ", a copy of said plat being recorded in Volume 7420, page 255 of the Official Records of Brazos County, Texas and being incorporated herein be reference (the "Plat"); and WHEREAS, Brazos County Markets, Ltd. is the owner of fee simple title to those certain tracts or parcels of real property being known and designated as Lots Two, Three and Four (hereinafter called the "Commercial Property", with the Residential Property and the Commercial Property being collectively referred to as the "Properties ") as shown on a plat entitled The Woodlands of College Station ", a copy of said plat being recorded in Volume 7420, page 255 of the Official Records of Brazos County, Texas and being incorporated herein be reference (the "PIat"); and WHEREAS, Woodlands of College Station, L.P. is developing the Residential Property for a residential condominium development with the creation of a condominium owners association (the "Residential Association ") for the management of the common elements of the residential condominium, with the proposed improvements to the Properties being shown on the site plan attached hereto and incorporated herein as Exhibit A (the "Site Plan "); and WHEREAS, Brazos County Markets, Ltd. is developing the Commercial Property for commercial, retail, office development; and WHEREAS, Declarant desires to execute this Declaration for the purposes of providing for and creating (i) a non - exclusive easement of ingress and egress for the joint use of the entrances/exits and certain driving areas now or hereafter lorao-d on the Properties; (ii) a sign easement for the joint use, maintenance and repair to the monument sign to be located on the Properties; (iii) cross utility easements for the placement, maintenance and repair of utility lines serving the Properties, (iv) certain restrictions applicable to the Properties as covenants running with the land; and (v) other purposes, as more particularly provided herein. ih t l i 0 0 Doc Bk Vol Ps 009Z5621 0f 719E 256 NOW, THEREFORE, in consideration of the mutual benefits to be realized by the joint use of the Properties and the covenants set forth herein, Declarant hereby declares and agrees that, from and after the date hereof, the Properties shall be held, owned and used in accordance with the following covenants, easements and restrictions: Section 1. Grant of Easements. 1.1 Access Easement. (a) Declarant does hereby grant, bargain, sell and convey a non - exclusive, permanent easement, right and privilege, which shall be appurtenant to and Shall run with title to the Properties over, across and through Tract Two and all existing curbcuts and private drives leading or connected to Tract One as shown on the Site Plan and any future curbcuts or private drives over, across and through the Properties for the purpose of providing the owners of the Properties, and the employees, contractors, customers, tenants, agents and invitees of such owners, ingress and egress for vehicular and pedestrian traffic to and from Southwest Parkway and Harvey Mitchell Parkway to the Properties (the "Access Fasement "). (b) Also conveyed is a temporary construction easement (the Driveway Temporary Construction Easement') lying and being twenty (20) feet on southern or eastern side of Tract Two and the drives as shown on the Site Plan for the purpose of access, egress, ingress, construction staging, construction mobilization, grading and movement of laborers, construction vehicles and equipment in connection with the development and construction of the improvements within the easements granted herein. The Driveway Temporary Construction Easement shall automatically terminate without any further action by either party when construction of the improvements within the easements is completed. (c) Woodlands of College Station shall be solely responsible for the initial construction of the improvements within the Access Easement. Following completion of the initial construction of the improvements within the Access Easement, the cost of maintenance and repair of the improvements within the Access Easement Shall be allocated among the Properties with 33% being allocated to the Commercial Property and 67% being allocated to the Residential Property. (d) The owner of the Residential Property or its designated representative, may, from time to time, notify the owner of the Commercial Property that maintenance or repair of the Access Easement is required, submitting with such notification a written proposal for the performing of the necessary maintenance and setting forth the costs thereof. Upon completion of the maintenance work required, the owner of the Commercial Property shall be required to reimburse the owner of the Residential Property for its pro-rata share as hereinabove determined, within thirty (30) days after receipt of written notice requesting such reimbursement and including copies of invoices for all work performed. In the event the owner of the Commercial Property shall fail to make such reimbursement within said thirty (30) day period, the amount due and owing, plus twelve percent (12%) interest per annum shall be and become a lien upon and burdening the Commercial Property in accordance with the terms and provisions of applicable law. For all purposes herein, specifically including notice requirements. should the Commercial Property and/or the Residential Property be submitted to the condominium form of ownership, the owners association for the property submitted shall be designated the authorized representative for the owners of the particular property. 0 0 Doc Et•, ttoi Ps 44935621 OR 749E 257 1.3 Utility Easements. (a) Declarant does hereby grant, bargain, sell and convey non - exclusive, permanent easements, rights and privileges, as are reasonably necessary or appropriate to construct, install, maintain repair and use utility service to serve the Properties including, without limitation, water, sewer, gas, television cable, electrical lines, telephone lines and other utility installations necessary or convenient to serve the Properties, which easements shall be appurtenant to and shall run with title to the Properties over, across, under and through such portions of the Properties and in areas as may be agreed upon by the parties. All utility easements shall be twenty feet in width and lying ten feet on either side of the centerline of such utility lines. The owner or owners of the underlying Property Shall have the right to alter or relocate the utility easements, utility lines and related facilities on the underlying Property so long as the easement rights granted herein are not materially adversely affected. The owner or owners of the affected Property reserves unto itself the right and privilege to use and occupy the surface of all portions of the utility easement areas in all manners not inconsistent with the easements granted herein. (b) It is acknowledged and agreed that Brazos County, Texas may not issue Certificate(s) of Occupancy for improvements on the Properties until dedication and acceptance of the applicable utilities in conjunction with the development of the Properties. Accordingly, when requested by Brazos County, Texas, the parties shall cooperate in execution of necessary utility easements, obtaining necessary releases from lien holders and generally doing all things necessary to, from time to titne and in a timely fashion, convey and dedicate such portions of the utilities as are completed to the applicable governmental entity. As it relates to dedication of any improvements to be dedicated under this Section 1.3 to an applicable governmental entity, the parties agree to respond to requests for execution of necessary instruments for dedication within five (5) business days from receipt of any request. (c) All work performed on the Properties pursuant to this Section 1.3 shall be performed in a good and workman5ke and lien -free manner with the party causing the work to be performed being responsible to return the affected property to substantially the same condition found before the work was performed. In the event a lien is filed against the Properties resulting from the work performed pursuant to this Section 1.3, the party causing the work to be performed will have the lien removed from the Properties by satisfaction, or bond, within thirty (30) days of the lien being filed. The owner or owners at whose insistence the work was performed shall indemnify and hold harmless the other owner or owners against any loss resulting from the work performed. (d) Unless otherwise agreed in writing by the Declarant, all utilities serving the Properties shall be installed underground except for those improvements which by their nature must be visible , i.e. manholes, meter boxes, etc. 1.4 Sign Easement_ (a) Declarant does hereby establish, grant, bargain, sell and convey a permanent easement, right and privileges, which shall be appurtenant to and shall run with the title to the Residential Property over and upon that portion of the Commercial Property adjacent to public roadways in such locations as may be agreed upon by the parties for the purpose of erecting, constructing, installing, maintaining and repairing, from time to time, a monument sign to service the Commercial Property and the Residential Property. 0 Q Ooc ak Vol Pa 00935621 OR 7493 252, Section 2. Restrictive Covenants. 2.1 Covenants Affecting the Properties. (a) Declarant hereby declares that the Properties, including the improvements constructed or to be constructed thereon, is hereby subject to the provisions of this Declaration and shall be held, sold, transferred, conveyed, used, occupied and mortgaged or otherwise encumbered subject to the covenants and restrictions hereinafter set forth, which shall run with the title to the real property hereby made subject hereto, and 01911 be binding on all persons having any right, title or interest in all or any portion of the real property now made subject hereto, their respective heirs, legal representatives, successors, successors in title and assigns, and shall inure to the benefit of each and every owner of all of any portion thereof. (i) No operation or use shall be permitted or maintained on the Properties which causes or produces noxious, toxic or corrosive fumes or gases; obnoxious odors; dust, dirt or fly ash; smoke, unusual fire or explosion hazards; excessive or unusual noise; or any other offensive or obnoxious activity which causes or produces any of the foregoing. The foregoing restriction shall specifically exclude, however, any normal and customary activities of apartment management and tenants, including, without limitation, the operation of outdoor grills and barbecues. (ir) No hazardous waste, lumber, metal, bulk material, refuse or trash shall be kept, stored or allowed to accumulate on the Properties except building materials during the course of construction of improvements. Trash or other refuse shall be kept in sanitary containers screened from view from adjoining properties and roadways. (iii) No drilling, quarrying or mining operations of any kind shall be permitted upon the Properties, nor shall wells, ranks, tunnels, excavations or shafts be permitted upon the Properties in connection with mineral exploration or exploitation. (iv) All landscaping within the Properties, will be designed, constructed and maintained in a condition consistent with a first-class, high quality commercial development in Brazos County, Texas. Any installation, construction or replacement of improvements within the Properties shall be conducted so as not to interfere with the use and enjoyment of the Properties by their respective owners and the employees, agents, contractors, tenants and subtenants of such owners. (v) Any signage constructed and maintained on the Properties shall comply with all applicable sign ordinances and shall be constructed in such a manner as to not obstruct the line of sight for the monument sign on the Commercial Property. (vi) Neither of the Properties shall be used fora bowling alley, arcade, tavern, night club, mobile home park, dumping or incineration of garbage (exclusive of a screened dumpster), fire or bankruptcy sale, central laundry or dry cleaning plant, automobile, truck, trailer or recreational vehicle sales lot, , mortuary, pawn shop, bingo club, auction house, or flea market. (vii) Neither of the Properties shall be used for any sexually explicit or illegal uses, such as a nude or semi -nude establishm -nt, adult bookstore or adult video store, store selling illegal drug paraphernalia, massage parlor, etc. • Doc 2k Vol Fs 009;35621 OR 749E 259 Section 3. Enforcement. 3.1 Notice of Violation. In the event any covenant, condition, limitation, restriction, reservation, right or privilege set forth in this Declaration is violated, the non - breaching party may execute and deliver to the breaching party a Notice (as hereinafter defined) specifying the violation and the action required to cure the violation, and if the violation is not cured, or significant action to cure the violation has not been undertaken and continued in good faith within thirty (30) days after the giving of such Notice, the non - breaching party may, without further notice to the breathing party, enforce the terms and provisions of these covenants and restrictions in accordance with Section 3.2, below. 3.2 Remedies. In enforcing any covenant, condition, limitation, restriction, reservation, right or privilege set forth in this Declaration, the non - breaching party may do any one or more of the following: (a) Exercise any right or remedy provided in this Declaration. (b) File suit at law or in equity either to restrain and enjoin the violation, or to recover damages, or both. (c) Cure the violation by paying or causing to be paid, when due and payable, any item which may be paid to cure a violation, or do or cause to be done such acts or things as may be required, necessary or desirable to cure the violation, in which case the sums paid, and the entire cost and expense of such acts or things, shall be reimbursed to non - breathing party, together with all costs of collection, including reasonable attorneys' fees. In the event that the breaching party does not pay any such sums paid by the non - breaching party pursuant to this subsection (c) within thirty (30) days of receipt of an invoice from the non - breaching party, the property owned by the breathing party within the Properties shall be subject to a lien in favor of the non - breaching party in the amount of the delinquent payment plus interest at the rate of ten percent (10%) per annum from the thirtieth (30th) day after the breaching party 's receipt of such invoice, with the priority of such lien being established as of the time and date of recording of the lien in the Deed Records of Brazos County, Texas. 3.3. Failure to Enforce. The failure of an owner to enforce any provision of these covenants and restrictions as provided above shall in no event be deemed a waiver of the right to do so thereafter. 3.4. Rights Cumulative. All of the enforcement rights and remedies set forth above are cumulative and in addition to any right or remedy provided for by statute, or now or hereafter existing at law or in equity; and each and every such right and remedy may be exercised concurrently or separately. 3.5. Mortgagee Cure. Notwithstanding any provision to the contrary in this Declaration, any holder of a deed to secure debt or similar instrument now or hereafter encumbering the Properties shall be privileged, but not obligated, to cure any default hereunder by the owner of the Cotntnercial Property or the owner of the Residential Property, as the case may be, within the time periods after its receipt of notice of any such default as are set forth in this Section 3. Section 4. N&.scellaneons. 4.1 Declaration Valid and Enforceable. All rights, powers and remedies provided in this Declaration may be exercised only to the extent that the exercise of such rights does not violate applicable C 0 Doc 1;0935621 OR 7495 260 law, and shall be limited to the extent necessary to render this Declaration valid and enforceable. If any term, provision, covenant or agreement contained in this Declaration shall be held to be invalid, illegal or unenforceable, the validity of the remainder of this Declaration shall not be affected thereby. 4.2 Parties. This Declaration shall be binding upon and enforceable against, and shall inure to the benefit of, the owners of the Properties, their respective successors and assigns, including without limitation successors -in -title, to all or portions of the Properties. Each of such parties shall have the right to enforce the provisions of this Declaration that benefit the portion of the Properties in which such party holds an interest. The terms and provisions of this Declaration shall be covenants running with the land, and any conveyance of any portion of the Properties affected by this Declaration shall expressly state that such conveyance is subject to the terms of this Declaration. By acceptance of a deed for any of such property, the grantee under any such deed shall be deemed to have assumed all the duties and obligations of its predecessor -in- interest accruing under this Declaration during the time the grantee owns such property. 43 Notices. Any notice or other communication required or permitted to be given under this Declaration (herein called a "Notice`) shall be in writing and shall be delivered overnight air courier or mailed by United States registered or certified mail, return receipt requested, postage prepaid and addressed to each party at its last known address. For notice purposes, the current address of Woodlands of College Station, L.P. is 1550 Timothy Road, Suite 201, Athens, Georgia 30606, Attention: Thomas W. Scott, III and the current address of Brazos County Markets, Ltd. is 1550 Timothy Road, Suite 201, Athens, Georgia 30606, Attention. Thomas W. Scott, III . Each Notice shall be •effective on the doer of overnight air courier delivery or on the date of deposit in the United States mail as provided above; however, the time period within which a response to any Notice must be given, if any, shall commence to ran from the date of actual receipt of such Notice by the addressee thereof. Rejection or other refusal to accept or the inability to deliver because of changed address of which no Notice was given shall be deemed to be receipt of the Notice sent. Any owner of one of the Properties or any portion thereof shall have the right from time - to-time to change its address and to specify any other address within the continental United States as provided in the following paragraph_ As and when the either party sells or conveys the Commercial Property and/or the Residential Property, the new owner of the particular property may record a notice in the Deed Records of Brazos County, Texas, specifying the address to which any notices to such owner are to be sent. Any such notices shall cross reference this Declaration by the Official Records Book and page number where this Declaration has been recorded. As stated in Section 1.2 above, should the Commercial Property and/or the Residential Property be submitted to the condominium form of ownership, the owners association for the property submitted shall be designated the authorized representative for the owners of the particular property with the Commercial Association being the designated representative of the owners of the Commercial Property and the Residential Association being the designated representative of the owners of the Residential Property. Unless the notice of address change is recorded in the Deed Records of Brazos County, Texas as provided above, the address of the particular association shall be the address of its registered agent as filed with the Secretary of State of Texas. In addition, a copy of any Notice shall also be sent, in the same manner as provided above, to any holder of any deed to secure debt or similar instrument encumbering anyportion of the Properties, if the name and address of such bolder has been provided in writing to the parties to this Declaration. 4.4 Headings. The headings, captions and numbers in this Declaration are inserted only as • 0 Doe Ek Vol Ps 01)235621 ER 749E 261 a matter of convenience and for reference and in no way define, limit or describe the scope or intent of this Declaration nor in any way affect the terms and provisions hereof. 4.5 Applicable Law. This Declaration shall be governed by, construed under and interpreted and enforced in accordance with the laws of the State of Texas. 4.6 Third Party Rights - This Declaration is not intended, nor shall it be construed, to create any third party beneficiary rights to any other person or entity. Nothing in this Declaration shall be deemed to be a gift or dedication of any portion of the Properties to the general public. 4.7 Entire Agreement; Amendment. This Declaration and the exhibits attached hereto contain all the representations and the entire grant between the parties with respect to the subject matter of this Declaration. This Declaration may be amended at any time, and from time to time, by the agreement of the owner of the Commercial Property and the owner of the Residential Property, such agreement to be evidenced by the execution of an amendment to this Declaration filed for record in the Deed Records of Brazos County, Texas, setting forth the terms and provisions of the amendment. For clarification, if either the Commercial Property and/or the Residential Property is submitted to the condominium form of ownership, the Commercial Association and/or the Residential Association, as the case may be, may amend this Declaration on behalf of all owners of the Commercial Property and/or the Residential Property, as the case may be. 4.8 Time is of the Essence. Time is of the essence of this Declaration and of each and every provision hereof. 4.9 Estoppels. Upon fifteen (15) days prior written notice, the parties hereto shall provide to each other such estoppel certificates (without warranties) as may be reasonably requested addressed to potential purchasers, investors or lenders, as the case may be. 4.10 Final Location of Easements. Upon completion of improvements within the various easements described in this Declaration and request by any party to this Declaration, the applicable parties shall execute all necessary, and record of record, documentation to specifically locate the applicable easement. IN WITNESS WHEREOF, the duly authorized Members of the Declarant has hereunto set their hands and affixed their seals as of the day and year first above written. WOODLANDS OF COLLEGE STATION, L.P., A Texas Limited Partnership acting by and through its general partner, WOODLANDS OF OL EGE STATION GP, LLC, A Texas limited liab � ' .uuany , 4 (Seal) Thomas . Scott, II1, Member By: / ( Seal ) Davi . Mulkey, Member 0 Doc Bk Vol Fs 00935621 OR 749E 262 BRAZOS COUNTY MARKETS, LTD., A Texas Limited Partnership acting by and through its general partner, BRAZOS COUNTY ! 1 S MANAGEMENT, LLC, 0 A Texas limited liar i �!srnpany By: t (Seal) Thomas W. Scott, III, Member By: � (Seal) David IZ34ulkey, Member THE STATE OF GEORGIA § (ACKNOWLEDGMENT) COUNTY OF ATHENS- CLARKE § BEFORE ME, the undersigned authority, on this day personally appeared Thomas W. Scott, III and David R. Mulkey, the members of Woodlands of College Station GP, LLC, a Texas limited liability company which is the sole general partner of Woodlands of College Station, L.P., a Texas limited partnership, known to me to be the person whose signature is subscribed to the foregoing instrument, who, being first duly sworn by me, stated upon their oath that they executed the foregoing instrument for the purposes and consideration therein expressed, in the capacity stated, and as the act and deed of said limited liability company. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the r /' S day of August, 2006. Notary Pn State of Georgia o - cAR O y g9 /s Notary's Printed Name: Michael A. Morris = F pUg�• °ryo�` My commission expires May 28, 200, MA-r e5 -CLAE6 - G � THE STATE OF GEORGIA § (ACKNOWLEDGMENT) COUNTY OF ATHENS- CLARKE § BEFORE ME, the undersigned authority, on this day personally appeared Thomas W. Scott, Ill and David R. Mulkey, the members of Brazos County Markets Management, LLC, a Texas limited liability company which is the sole general partner of Brazos County Markets, Ltd., 0 Doc 2f: vol Ps 00435621 2R 7490 263 a Texas limited partnership, known to me to be the person whose signature is subscribed to the foregoing instrument, who, being first duly sworn by me, stated upon their oath that they executed the foregoing instrument for the purposes and consideration therein expressed, in the capacity stated, and as the act and deed of said limited liability company. GIVEN U� 1DER MY HAND AND SEAL OF OFFICE this the le day of August, 2006. ` ``,,,,, 11,,,,,, ' p,i4 Notary Public, State of Georgia = v : �� i 0: c ' Notary's Printed Name: 2 0: � Pl10 _ Michael A. Morris Mp ,,1 V" My commission expires May 28, 2009 AFTER RECORDING RETURN TO: PREPARED LET THE LAW OFFICE OF: Brad Sharpe, Esq. Michael A. Morris, Esq. Charles A. Ellison, P.C. Blasingame,Bnrch, d & Ail y PC 440 College Avenue lea for eco >t P.O. Box 10103 � o �1tAZDS cowry College Station, Texas 77842 -0103 Athens, Georgia 30601 g On= Aus 07,2006 at 12 :17 As a Recordiass Docuteat itv,nber: 0735621 Amount 47.00 Receipt Nunber - 296704 3y, Flo ',arknaa STATE OF TEXAS C504TY OF ORAZOS 1 her ebs , srtil's that this iestrusent was Plied on the date and time stewed hereon he to and was duly recorded in the volute and vase oS the Official Public records d•: 0RAZOS COUNT'( as starred herea, bs re. 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