Lockhill Ventures, LLC v. Ard Mor, Inc., Texas Ardmor Properties, LP, and Texas Ardmore Management, LLC

Opinion

ACCEPTED 04-14-00796-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 2/17/2015 6:31:46 PM KEITH HOTTLE CLERK

No. 04-14-00796-CV

FILED IN IN THE COURT OF APPEALS FOR THE 4th COURT OF APPEALS SAN ANTONIO, TEXAS FOURTH COURT OF APPEALS DISTRICT 2/17/2015 6:31:46 PM SAN ANTONIO, TEXAS KEITH E. HOTTLE ______________ Clerk

LOCKHILL VENTURES, LLC, APPELLANT, V.

ARD MOR, INC.; ARDMOR PROPERTIES, LP; & TEXAS ARDMOR MANAGEMENT, LLC, APPELLEES. ______________

ON INTERLOCUTORY APPEAL FROM CAUSE NO. 2014-CI-10796, IN THE 407TH JUDICIAL DISTRICT COURT IN BEXAR COUNTY, TEXAS THE HON. RICHARD PRICE (SITTING BY ASSIGNMENT)

FIRST AMENDED APPENDIX IN SUPPORT OF APPELLANT’S BRIEF ON THE MERITS

Tab 1 TEX. CIV. PRAC. & REM. CODE § 51.014

Tab 2 SAN ANTONIO MUNICIPAL CODE § 11-38

Tab 3 UNITED STATES CONSTITUTION, 1ST AMENDMENT

Tab 4 TEXAS CONSTITUTION, ARTICLE I, SECTION 8

Tab 5 TEXAS CONSTITUTION, ARTICLE I, SECTION 27

Tab 6 LETTER FROM JUDGE PRICE GRANTING APPLICATION FOR TEMPORARY INJUNCTION

Tab 7 TEMPORARY WRIT OF INJUNCTION Tab 8 ORDER FOR TEMPORARY INJUNCTION

Tab 9 DECLARATION OF PROTECTIVE COVENANTS Page 1

LexisNexis (R) Texas Annotated Statutes Copyright © 2014 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.

*** This document is current through the 2013 3rd Called Session ***

CIVIL PRACTICE AND REMEDIES CODE TITLE 2. TRIAL, JUDGMENT, AND APPEAL SUBTITLE D. APPEALS CHAPTER 51. APPEALS SUBCHAPTER B. APPEALS FROM COUNTY OR DISTRICT COURT

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Tex. Civ. Prac. & Rem. Code § 51.014 (2014)

§ 51.014. Appeal from Interlocutory Order

(a) A person may appeal from an interlocutory order of a district court, county court at law, statutory probate court, or county court that: (1) appoints a receiver or trustee; (2) overrules a motion to vacate an order that appoints a receiver or trustee; (3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure; (4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as provided by Chapter 65; (5) denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state; (6) denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73; (7) grants or denies the special appearance of a defendant under Rule 120a, Texas Rules of Civil Procedure, ex- cept in a suit brought under the Family Code; (8) grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001; (9) denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351; (10) grants relief sought by a motion under Section 74.351(l); (11) denies a motion to dismiss filed under Section 90.007; or (12) [2 Versions: As added by Acts 2013, 83rd Leg., ch. 44] denies a motion for summary judgment filed by an electric utility regarding liability in a suit subject to Section 75.0022.

Tab 1, Page 1 of 2 (12) [2 Versions: As added by Acts 2013, 83rd Leg., ch. 1042] denies a motion to dismiss filed under Section 27.003. (b) An interlocutory appeal under Subsection (a), other than an appeal under Subsection (a)(4), or in a suit brought under the Family Code, stays the commencement of a trial in the trial court pending resolution of the appeal. An inter- locutory appeal under Subsection (a)(3), (5), (8), or (12) also stays all other proceedings in the trial court pending reso- lution of that appeal. (c) A denial of a motion for summary judgment, special appearance, or plea to the jurisdiction described by Sub- section (a)(5), (7), or (8) is not subject to the automatic stay under Subsection (b) unless the motion, special appearance, or plea to the jurisdiction is filed and requested for submission or hearing before the trial court not later than the later of: (1) a date set by the trial court in a scheduling order entered under the Texas Rules of Civil Procedure; or (2) the 180th day after the date the defendant files: (A) the original answer; (B) the first other responsive pleading to the plaintiff's petition; or (C) if the plaintiff files an amended pleading that alleges a new cause of action against the defendant and the defendant is able to raise a defense to the new cause of action under Subsection (a)(5), (7), or (8), the responsive plead- ing that raises that defense. (d) On a party's motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if: (1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation. (d-1) Subsection (d) does not apply to an action brought under the Family Code. (e) An appeal under Subsection (d) does not stay proceedings in the trial court unless: (1) the parties agree to a stay; or (2) the trial or appellate court orders a stay of the proceedings pending appeal. (f) An appellate court may accept an appeal permitted by Subsection (d) if the appealing party, not later than the 15th day after the date the trial court signs the order to be appealed, files in the court of appeals having appellate juris- diction over the action an application for interlocutory appeal explaining why an appeal is warranted under Subsection (d). If the court of appeals accepts the appeal, the appeal is governed by the procedures in the Texas Rules of Appellate Procedure for pursuing an accelerated appeal. The date the court of appeals enters the order accepting the appeal starts the time applicable to filing the notice of appeal.

Tab 1, Page 2 of 2 San Antonio, TX Code of Ordinances about:blank

Tab 2, Page 1 of 1 1 of 1 1/30/2015 10:33 PM Page 1

UNITED STATES CODE SERVICE Copyright © 2014 Matthew Bender & Company, Inc. a member of the LexisNexis Group (TM) All rights reserved.

*** Current through PL 113-286, approved 12/18/14 ***

CONSTITUTION OF THE UNITED STATES OF AMERICA AMENDMENTS AMENDMENT 1

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USCS Const. Amend. 1

THE CASE NOTES SEGMENT OF THIS DOCUMENT HAS BEEN SPLIT INTO 7 DOCUMENTS. THIS IS PART 1. USE THE BROWSE FEATURE TO REVIEW THE OTHER PART(S).

Religious and political freedom.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridg- ing the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Govern- ment for a redress of grievances.

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1 of 1 DOCUMENT

LexisNexis (R) Texas Annotated Statutes Copyright © 2014 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.

*** This document is current through the 2013 3rd Called Session ***

CONSTITUTION OF THE STATE OF TEXAS 1876 ARTICLE I. BILL OF RIGHTS

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Tex. Const. Art. I, § 8 (2014)

§ 8. Freedom of Speech and Press; Libel.

Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.

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1 of 1 DOCUMENT

LexisNexis (R) Texas Annotated Statutes Copyright © 2014 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.

*** This document is current through the 2013 3rd Called Session ***

CONSTITUTION OF THE STATE OF TEXAS 1876 ARTICLE I. BILL OF RIGHTS

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Tex. Const. Art. I, § 27 (2014)

§ 27. Right of Assembly; Petition for Redress of Grievances

The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or re- monstrance.

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0> NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER

DECLARATION OF PROTECTIVE COVENANTS

This Declaration of Protective Covenants CDeclaration") is made to be effective as of December 14,2007. by Shavano Creek Commercial Partnership Unit 1, Ltd., a Texas limited partnership ("Declarant").

Declarant is the owner of the real property In Bexar County, Texas, described In ExhibitA attached hereto and incorporated herein ("Property").

Declarant desiresto provide for the systematic, orderly development and use of the Property to ensure that the use and development of the Property and the improvements constructed thereon are not incompatible with any adjoining commercial properties and residential neighborhoods.

NOW THEREFORE. Declarant declares that the Property shall hereinafter be held, transferred, sold, conveyed, occupied and used subject to the covenants, requirements, conditions, restrictions, easements and charges hereinafter set forth, it being expressly acknowledged and agreed that the covenants, restrictions, easements andconditions herein set forth shall run with the land and be binding on all parties having all right, titleor interest in the Property, and theirrespective heirs, successors and assigns.

1. DEFINITIONS.

(a) "Applicable Area" means that portion of the Property lying within fifty feet (50') of the Property line abutting Huebner Road or Lockhtll-Selma Road.

(b) "City" means the City of Shavano Park, Texas, and its applicable agencies, departments, and commissions.

(c) "Declarant" means Shavano Creek Commercial Partnership Unit 1, Ltd., a Texas limited partnership, and its permittedsuccessors or assigns who are designated by Declarant as such In writing in accordance with the terms hereof, and who consent In writing to assume the duties and obligations of the Declarantwith respect to the Property.

(d) "Declaration" means this instrument and any amendment or supplement hereto duly approved in accordance with the terms hereof and recorded in the Official PublicRecords of Real Property of Bexar County.Texas.

(e) "Governmental Authority* means all federal, state and local authorities, agencies, commissions and regulatory bodies having jurisdiction over the Property, or any portion thereof, or over the Declarant or any Owner.

(f) "Governmental Regulations" means all statutes, rules, codes, ordinances, regulations, permits, licenses and other requirementsof any Governmental Authority.

(g) "Improvements" means every structure on the Property and all appurtenances thereto, including, but not limited to, buildings, outbuildings, recreational facilities, roads, driveways, sidewalks, walkways, paved areas, parking areas, fences, screening walls, retaining walls, loading areas and facilities, signs, utilities, lawns, hedges, mass plantings, landscaping, water lines, sanitary and storm sewers, electrical

CERTIFICATE The pageto which this certificate Isaffixed nay have been alteredto redact confidential personal Information but is otherwise a full, true and correct copy of the original on file and of record In my office.

ATTESTED: GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: 1-IWH Deputy Tab 9, Page Date 1 of 15 and gas distributions facilities, street lights, fiber optic and telecommunications equipment and facilities, and all exterior HVAC or other exterior fixtures or equipment, pumps, tanks, lines, antennas, satellite dishes, towers, metering equipment and other utility or infrastructure facilities.

(h) "Owner" means and refer to each owner of record, whetherone or more persons or entities, of fee simple tide to all or any partof the Property, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation.

(i) "Property" means and refer to the real property in Bexar County, Texas described in Exhibit A attachedheretoand incorporated herein, and/or any portion thereof.

(j) "Required Plans' means complete architectural renderings and site plans, including grading plans, exterior elevations, light spillage plans, landscape and irrigation plans, and any other plans or information deemed necessary in the reasonable judgmentof the Declarant in accordance withSection 3 herein in order to ensure that the Improvements are not incompatible with adjacent residential neighborhoods or commercial properties, as further describedin Section 3 herein.

2. PROPERTY SUBJECT TO THIS DECLARATION. The real property which is and shall be held, transferred, sold, conveyed, developed and occupiedsubject to this Declaration is the Property described in Exhibit A attached hereto and incorporated herein.

3. ARCHITECTURAL CONTROL.

(a) Plan Review. No Improvement shall be erected, constructed, placed, altered (either by addition or deletion), maintained or permitted to remain on any portion of the Property until the Required Plans, in such form and detailas the Declarant may deem reasonably necessary, shall have been submitted to and approved in writing by the Declarant, as to conformity with the requirements and standards set forth In Sections 4 and S herein. The Required Plans shall include the location of all easements affecting the Property. The Declarant may employ professional consultants to assist it In such review, and impose reasonable fees for processing of applications. The decision of the Declarant shall be final, conclusive, and binding uponthe applicant andthe Declarant, entitling the applicant to rely on such decision.

(b) Limitation of Liability. Declarant and its representatives shall not be liable to any person subjectto or possessing or claiming the benefits of this Declaration for any damage or injury to property or for damage or loss arising outof their acts hereunder. Declarant's evaluation of the Required Plans is solely to determine compliance with the terms of this Declaration. Declarant expressly disclaims any responsibility to determine compliance of the plans with any applicable Governmental Regulations, building code or other standard for construction. Declarant shall not be responsible for reviewing any plans or specifications from the standpointof structural safety, engineering soundness, or conformance with building or other codes, or other Governmental Regulations, nor shall Declarant's approval be deemed a verification of the structural safety, engineering soundness, or conformance of the Improvements to building or other codes, or other Governmental Regulations. Neither the Declarant nor any of the partners, employees or agents thereof, shall be liable in damages or otherwise to anyone submitting plans andspecifications for approval orto anyOwner affected by this Declaration by reason of mistake of judgment, negligence, or nonfeasance arising out of or in connection with the approval or disapproval or failure to approveor to disapprove any plansand specifications or requests forvariance.

(c) Procedures. Declarant shall notifyOwner in writing whether any Required Plans are approved or disapproved (specifying reasons for disapproval) within twenty (20) days after Declarant has received the Required Plans and written notice that the Owner desires to obtain Declarant approval thereof. If plans submitted by any Owner are not sufficiently complete or are otherwise inadequate, Declarant may reject them as being Inadequate or may approve or disapprove them in part, conditionally or unconditionally, and reject the balance, or may notify the Ownerthat additional documents or information are required. If the submitted plans are deemed to be inadequate or incomplete and written notice of

XrfwejSV CERTIFICATE ^$^a7^v\ The page to which this certificate isaffixed may have been altered toredact confidential personal information but is otherwise a full, true and correct copy ofthc original on file and of record in my office.

ATTESTED: (SmmS^ GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: O-fUN- Deputy Tab 9, Page Dale 2 of 15 such determination is given toOwner within twenty (20) daysof submission of such plans, the twenty (20) day review period shall not commence until Declarant has received a completeset of the Required Plans. If Declarant fails to reject or approve submitted plans within the review period, such plans shall be deemed approved as submitted by the Owner.

(d) Variances. Declarant may, but shall not be obligated to, grant variances and waivers relative to deviations from this Declaration, or to corrector avoid hardships to any Owner. Upon submission of a written request for variance, Declarant may, from time to time, In its reasonable discretion, permit an Owner to construct, erect or install an Improvementwhich is in variance from the covenants, restrictions or architectural standardswhich are provided in this Declaration. In any case, however, the Improvement with such variances must not, in Declarant's reasonable discretion, materially and detrimentally affect the adjacent residential and othercommercial properties. All requests for variances shall be in writing, shall be specifically indicated to be a request for variance, and shall indicate with specificity the particular standard soughtto be varied and the natureof the variance requested. All requests for variances shall be deemed to be disapproved if Declarant has not expressly approved such request in writing within fifteen (15) days of the submission of such request. Declarant shall not be liable to Owner or any other person for any claims, causes of action or damages arising out of the grant of any varianceto an Owner. Each request fora variance submitted hereunder shall be reviewed independently, and the grantof a variance to any one Owner shall not constitute a waiver of Declarant's right to deny a variance to another Owner. The decisions of Declarant with respect to variances shall be final and mutually binding upon the applicant and Declarant. Allvariances,to be effective, must be inwriting and in recordable form. Owners are advised that certain variances may require the separate approval of the City or other applicable Governmental Authority.

(e) Approval Letter. Upon approval of the final Required Plan submittals, an Approval Letterwill be issued by Declarant. The Approval Lettermust be signed by the Ownerand returned to Declarant before construction of the Improvements specifiedthereinmay begin. By execution and delivery to Declarant of the Approval Letter, the Owner covenants and agrees as follows:

(0 Construction of the Improvements will be completed within twelve (12) consecutive months from start of construction.

(ii) Construction will be in substantial accordance withthe approved Required Plans.

(iii) Any material exterior changes after final approval of the Required Plans by Declarant must be approvedinwriting by Declarant prior to construction of those changes.

(iv) Declarant may, upon advance notice to Owner, make regular inspections of the Improvements and construction site at times reasonably acceptable to Owner and accompaniedby a representative of Ownerif required by Owner.

If any of these conditions are not met and such failure continues fortwenty (20) days after written notice thereof to Owner detailing the nature of such failure, the Approval Letter shall terminate and be of no further force or effect, and Owner shall be subject to the plan review process and allother requirements set forth herein with respect to the construction of any Improvements on the Property.

(f) Failure of Declarant to Act. If Declarant fails to provide Owner with written notice of its approval or disapproval of any plans within twenty (20) days after submission by Owner of the Required Plans (subject to Declarant's rejection thereof and/or request for additional documents or information pursuant to Subsection (c) above), it shall be conclusively presumed that Declarant has approved such plans; provided, however,that a deemed approval of any plan submittal shall not permita violation of any of the terms of this Declaration, nor extend to any deviation from or alteration to the plans actually submitted, nor to any matterrequiring a written variance.

CERTIFICATE The page to which this certificate Is affixed may have been altered to redact conndential personal inronualion but is otherwise a full, true and correct copy of the original on file and of record in my office.

ATTESTED: GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: r^ *MlH4 Tab 9, Page Deputy Date 3 of 15 (g) Decisions Final. All decisions of Declarant shall be final and binding, and there shall not be revisions ofanyaction of Declarant except by appropriate legal proceedings. In the eventof construction of Improvements or threatened construction of Improvements in violation of this Declaration, any Owner or Declarant mayseek to enjoin such construction orseek other relief against the Owner and/or builder responsible therefor, provided that Owner shall first be given written notice of the perceived violation and a reasonable period of timeto remedythe violation prior to rite filing of suitas provided herein.

(h) Compliance Inspection and Enforcement Declarant, may, but Is not required, to police or enforce compliance with such considerations as setbacks or other specific, objective construction requirements set forth herein. Declarant's agent may inspect those items reviewed by Declarant, Including inspection for conformance to the site plan (grading and drainage), building plan, landscaping plan, and exterior design, colors and materials. In the event Declarant reasonably determines that significant field discrepancies exist, Declarant may notify Owner of the nature and extent of the discrepancy. Written clarification must be supplied by Owner to Declarant within ten (10) business days of receipt of such notification, in the eventclarification by the Owneris not forthcoming or Is determined to be inadequate by Declarant in its reasonable discretion, Declarant may at its sole discretion retain a private consultant for the purpose of obtaining an outside opinion. All reasonable professional fees and expenses associated with the retention of a private consultant up to $750 may be assessed by Declarant against the Owner. Once any Improvements haveachieved substantial completion, however. Declarant shall have no further right to notify Owner of anydiscrepancies hereunder, unless such Improvements are materially altered in any way after substantial completion or such Improvements are only visible and apparentaftersubstantial completion.

4. USE OF PREMISES. The following provisions shall govern the development and use of the Property and Improvements inor on the Property orany portion thereof.

(a) Permitted Uses. Office, commercial, retail, restaurants, financial institutions, multi-family, office service, schools, churches, health care or medical facilities, or as otherwise permitted to the maximum extent by applicable zoning laws or otherGovernmental Regulations, unless expressly prohibited herein.

(b) Prohibited Uses. No portion of the Property shall be used for any use prohibited by applicable zoning lawsorotherGovernmental Regulations orfor anyof the following uses:

(i) Any use which is noxious or offensive by reason of the emission or discharge of excessive noise, vibration, smoke, heat, radiation, fumes or wastes, odorous, or particulate matter.

(ii) Storage, handling or use of explosivematerial.

(iii) Commercial landfill, dump, junkyard or other similar operation.

(iv) Raising, maintenance, housing or treatment of livestockor other animals overnight other than in connection with the operationof a veterinary clinic on the Property.

(v) Commercial storageor sales of motor vehicles,mobilehomes, portable buildings or other temporary buildings, except that this restriction shall not apply to:

(1) New automobile agency or dealer which is restricted to the display of automobiles of the current and immediately preceding model years.

(2) The display or sales of restored "antique' or 'classic' automobiles or other motor vehicles.

CERTIFICATE The page to which this certificate is affixed may have been altered to redact conndential personal information but Is otherwise a full, true and correct copy of the original on file and of record in my office.

ATTESTED: GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: jr~ Deputy 1-1 VIM Tab 9, Page Date 4 of 15 (vi) Bars, nightclubs, taverns, play parks, dance halls, outdoor theaters and race tracks, except if such use is wholly contained within a bona fide restaurant or is otherwise offered as an incidental amenity to the primary business, such as a health club, tennis club or racquetball club.

(vii) Mortuaries, funeral homes, and cemeteries.

(viii) Temporary buildings, trailers and mobile homes In the open, except as a construction office for a project being constructed upon a portion of the Property and only for the period of such construction.

(ix) Aduit entertainmentand other sexualiy-oriented businesses, Including, without limitation, massage parlor, adutt bookstore or video store, aduit theatre, adult dancing establishment, adult or hourly-rate motel, or any activity or use (which terms include anything capable of being discerned by any human senses) which is sexually-oriented, pornographic, obscene, lewd, or lascivious, as defined from time to time by the United States Supreme Court and/orGovernmental Regulations.

5. CONSTRUCTION AND DEVELOPMENT STANDARDS.

(a) Structural Requirements.

(i) Exterior Walls: Each exterior wall shall be not less than eighty percent (80%) masonry, inclusiveof brick, brick veneer, stucco, masonry, limestone, concrete, concrete block, or such other exterior building materials as may hereafter be in use for construction of first class buildings, in the north Bexar County area. No corrugated metal may be used. No product regardless of composition, which is manufactured to have a wood or non- masonry appearance, willbe considered masonry.

(ii) Roof Design: Roof design shall be gable, Dutch gable, hip, shed, or flat roofs with parapets.

(iii) Roofing Material: Standing seam metal, Tennessee v-crimp, built-up, composition, and concrete tileare acceptableroofing materials.

(iv) RoofStructure: All objects mounted on the roof of any building, including, but notlimited to, air-conditioning units, exhaust fans, and chillers, must be screened by parapets or other screening so as to shield the visibility thereof by residents of the neighboring residential subdivisions. The height of the screen must be equal to the height of the tallestitem being screened.

(v) Overhead Doors: All overhead doors, service entrances and installation entrances shall be limited to side or rear entrances only. For the purpose of determining the side or rear elevation, the building wail line parallel or most closely parallel to any public street shall be deemed the front In addition, a building locatedon a comer shallbe deemed to have two (2) front elevations.

(b) Lighting.

(i) Parking Lot Lighting:

(1) Lights shall notexceed fifteen feet (15') in height, exceptthatlights may be upto twenty feet (20') inheight inthe Applicable Areaif approved by Declarant.

(2) Parking lots will be fully lighted from dusk until 10:00 p.m. orsuch longer time as determined by an Owner to provide for nighttime security.

CERTIFICATE The pageto which this certificateIsaffixed may have been alteredto redactconndential personal information but is otherwise a full, true and correct copy of the original on flic and of record In my office.

ATTESTED: GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: _ 0-tlrH Deputy Tab 9, Page Date 5 of 15 (ii) Wall or building lighting:

(1) All lighting shall be ground-mounted or wall-mounted.

(2) Lighting shall be designed so as to light only the exterior walls of the building, except for canopy lighting and/or sconce lighting, and further provided that security lighting may be installed on the rear wall of a building provided that all such lighting shall be directed downward to avoid light spillage on nearby residential neighborhoods. (c) Signs.

(i) Permitted signs are those which:

(1) Identify the Property and give directions. (2) Identify a building or a particularbusiness.

(3) Monument signs,and pylon signs(in the Applicable Area only), which conform to the applicableordinances of Governmental Authority.

(4) Directional, advertising, promotional or for sale signs that are no larger than ten feet (10') wide and ten feet (10') tall.

(ii) Prohibited signs are:

(1) Portable signs of any kind.

(2) Bench signs.

(3) Signs protruding above the building roofllne or building parapet, unless part of a special brand component or trademark requirement of a regional or national tenant.

(4) Neon signs, blinking, rotating, animated, painted, Day-Glo colored signs, or internally lit signs, unless part of a special brand component or trademark requirementof a regional or national tenant.

(5) ForSale signs, except two (2) signs used to advertise a particular Lot forsale or lease. Each ForSale sign mustbe removed as soon as the Lot is sold or leased.

(6) Inflatables (e.g. purple gorillas) or banner signs (except for banner "For Lease" signs) located on any building elevation, roof or any other portion of the Improvements or the Property.

(7) 'Bandit" signs located in the Property or on any street outside the Property when such signs direct traffic to the Propertyor to a lot within the Property.

(d) Outdoor Storage and Screening.

(i) Screen walls shall be constructed of the same, or comparable, material comprising the exteriorwalls of the main building and be not less that one foot (1') taller than the item being screened. The screen wall shall screen from the view of all parking areas, major thoroughfares, majorcollection streets, public streets and other buildings or residences, the following items:

(1) Refuse containers, utility meters, transformers and satellite dishes, which can be viewed from the front or rear of the building.

CERTIFICATE The page to which this certincale is affixed may have been altered to redact conndential personal information but is otherwise a full, true and correct copy ofthe original on file and of record in my office.

ATTESTED: GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: ^ n-HHH Deputy Tab 9, Page Date 6 of 15 (2) Loading areas, service areas and outside storage, other than normal parking associated with the use of the lot. which can be viewed from the front or rear of the building.

(ii) Gates in screen walls shall be solid and of a design and material approved by the Declarant. When not being used, such gates shall remain closed at alltimes.

(iii) All screening and outdoor storage must comply with applicable ordinances, rules and regulations of Governmental Authority.

(e) Fences.

(i) No fence may be built within view of any public or private street (except for restaurant patio areas), unless the fence conforms to the requirements of Subsection (d) above.

(ii) No fence may be erected forward of the building front setback line as prescribed herein and by applicable Governmental Regulations.

(f) Parking and Loading Areas.

(i) Parking lots shall be paved with concrete, asphalt or other permanent material.

(ii) All parking areas shallconform to or exceed the requirements of the City building codes and landscape ordinancesand applicable ordinances of the City, as amended from tame to time.

(iii) Noinventory, vehicles, equipment orotherproperty may be maintained, stored, or placed outdoorswithout the express written consent of the Declarant, except for overnight and weekend or holiday parking of business vehicles, and vehicles kept within the loading area of the Improvements.

(iv) Owners shall be responsible for managing the parking of vehicles by their employees, contractors, customers and Invitees.

(g) Landscaping. Each lot must comply with applicable landscape, tree and other applicable ordinances of the City and otherGovernmental Regulations of applicable Governmental Authority in effect at the time of construction on the Property or any portion thereof.

(h) Setbacks. All setbacks in the Property shall conform to the applicable Governmental Regulationsof the City and other applicable Governmental Authority.

(i) Off-street parking areas.

(i) Shallbe curbed, gutteredand paved.

(ii) Shall be built so that grades are acceptable from a civil engineering and public safety standpoint

(iii) Shall be landscaped in accordance with the City landscape ordinance. All landscaping shall be maintainedin a neat and orderly condition.

(j) Building Height Restrictions. Ail buildings on the Property will be limited tothree (3) stories in height (excluding chimneys, cooling towers, ornamental cupolas, domes or spires, parapet walls not exceeding four feet (4') in height,and basements).

CERTIFICATE The page to which this certificate is affixed may have been altered to redact confidential personal inrormation but is otherwise a full, true and correct copy of the original on file and of record in my office.

ATTESTED: GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: Hliw^f Deputy Tab 9, Page Date 7 of 15 (k) Maintenance.

(i) Construction Sites: Each Owner shall maintain construction sites in a clean condition, removing accumulation of scrap and rubbish regularly and storing construction materials and equipment in a neat, orderly manner. On-site burning or disposal of trash shall be prohibited. Each Owner shall, during construction, provide adequate dumpsters and port- a-pottles on site and be responsible for having these receptacles emptied and reset on a regular basis.

(ii) Developed Property: Outdoor storage of trash, materials, equipment and vehicles must be screened as set forth in Subsection (d) herein. All trash must be removed on a regularbasis, and in no event less frequently than once weekly.

6. GOVERNMENTAL REQUIREMENTS.

(a) Compliance. All Improvements located, erected, constructed and installed upon the Property and all activities of the Owners, their tenants, invitees, agents, employees and contractorson or about the Property, shallconform to and complywithallapplicable Governmental Regulations.

(b) Precedence Over Less Stringent Governmental Regulations. If the covenants, conditions and restrictions set forth in this Declaration set or establish minimum standards or limitations or restrictions on use in excess of any Governmental Regulations, the covenants, conditions and restrictions set forth in this Declaration shall take precedence and prevail over any less stringent Governmental Regulations. Similarly, when any Governmental Regulations are more stringent than those set forth in this Declaration, the more stringent Governmental Regulations shall control.

(c) Annexation. The Property lies within the extraterritorial jurisdiction of the City of Shavano Park, Texas. Each Owner is advised that it is Declarant'sintent that the Property be annexed into the city limits of the City upon completion of the initial permanent Improvement on the Property or any portion thereof. By acceptance of a deed to all or any portion of the Property, each Ownercovenants and agrees to joinin and execute a voluntary petition for annexation and to otherwise support and permit, the annexation of the Property into the city limits of the City, upon request by Declarant at any time after completion of the initial permanent Improvement on the Property or any portion thereof; provided however, that such annexation shall permit the development and use of the Property for all uses permitted under the City's B-2 zoning classification then ineffect Each Owner shall be responsible for its pro-rata portion (based on gross acreage)of the fees charged by the City inconnection withthe annexation of the Property.

7. ENFORCEMENT. Declarant shall have the right, but notthe obligation, to enforce all restrictions and covenants imposed by this Declaration. Failure to enforce any covenant or restriction shall not be deemed a waiverof the right These covenants may be enforced by Declarant, its permitted successors and assigns, by any and allremedies available at law or in equity, including, without limitation, injunctive relief, without the necessity of showing irreparable harm or injury. Any court action brought to enforce any obligation or restriction hereunder shall, Ifsuccessful, entitlethe prevailing partyin such actionto the awardof costs and attorney's fees.

8. INDEMNIFICATION AND RELEASE. EACH PROSPECTIVE PURCHASER IS RESPONSIBLE FOR THOROUGHLY INSPECTING AND EXAMINING THE PROPERTY AND FOR CONDUCTING SUCH INVESTIGATIONS OF THE PROPERTY AS IT DEEMS NECESSARY TO EVALUATE ITS PURCHASE. BY COMPLETING THE PURCHASE OF ALL OR ANY PART OF THE PROPERTY, EACH PROSPECTIVE PURCHASER IS ACKNOWLEDGING THAT IT IS PURCHASING THE PROPERTY ON AN "AS IS", "WHERE IS" AND "WITH ALL FAULTS" BASIS.

BY PURCHASING ALL OR ANY PART OF THE PROPERTY, EACH OWNER AGREES TO INDEMNIFY AND HOLD HARMLESS AND TO UNCONDITIONALLY RELEASE DECLARANT, ITS PARTNERS, OFFICERS, DIRECTORS, CONTRACTORS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY CLAIMS, COSTS, FEES, EXPENSES, DAMAGES OR LIABILITIES THAT AN OWNER,

CERTIFICATE The page to which this certificate is affixed may have been altered to redact confidential personal information but is otherwise a full, true and correct copy of the original on file and or record in my office.

ATTESTED: GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: l-lo-iM Tab 9, Page Deputy Date 8 of 15 HIS FAMILY, EMPLOYEES, GUESTS, TENANTS, CONTRACTORS AND ANY OTHER INVITEES MAY SUFFER OR INCUR AS A RESULT OF,ARISING OUT OF, OR RELATED TO ANY CONDITION ON, IN OR UNDER ALL OR ANY PART OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, CAVES, SINKHOLES, STREETS. TREES WITHIN OR NEAR THE STREET RIGHTS-OF-WAY, DRAINAGE FACILITIES, AND OTHER DANGEROUS OBJECTS OR CONDITIONS OF WHICH DECLARANT HAS NO ACTUAL KNOWLEDGE AS OF THE DATE OF RECORDING OF THIS INSTRUMENT OR AS TO WHICH DECLARANT HAS MADE A WRITTEN DISCLOSURE TO OWNER.

9. TERM. This Declaration, including all of the covenants, conditions and restrictions herein, shall run until December 31,2027, unless earlier amended orterminated as herein provided, afterwhich time they shall be automatically extended for successive periods often(10) years each, unless terminated by written instrument approved by not less than the then Owners in the aggregate of two-thirds (2/3rds) or more of the gross land area of the Property (and Declarant, ifsuchamendment ortermination occurs on orprior to December 31,2027), andrecorded in theReal Property Records of Bexar County, Texas. 10. GENERAL PROVISIONS.

(a) Severability. Invalidation of any oneof the provisions, covenants orrestrictions set forth in this Declaration by judgment orcourt order shall in no wise affect any other provisions which shall remain in full force and effect.

(b) Binding Effect. The foregoing covenants are made and adopted to run with the land, andshall be binding upon eachOwner of the Property oranyportion thereof. (c) Assignment by Declarant. Notwithstanding any provision in this Declaration to the contrary, Declarant may, in a writing filed of record, expressly assign, in whole or in part, any of the privileges, exemptions, rights and duties underthis Declaration to another entity that is managedand controlled by Bitterblue, Inc.. or any of the principals therein as of the date hereof. Upon assignmentby Declarant of any or all of such rights, such Declarant shall no longer be liable for performance of suchassigned rights provided that the assignee expressly assumes in the recorded assignment the obligations of Declarant that are assigned. All assignments of Declarant's privileges, exemptions, rights and duties under this Declaration otherthan that described herein require the written approval of the then Ownersof two-thirds (2/3) or more of the gross landarea of the Property inorderto be effective.

(d) Amendment. This Declaration maybe amended orterminated bywritten instrument executed by (i) the then Owners in the aggregate of 2/3rds or more of the gross land area of the Property, and (ii) through and including December 31, 2027, the Declarant, upon recording of such written instrument in the Real Property Records of BexarCounty,Texas.

(e) Singular Includes Plural. Unless the context requires a contrary construction, the singular shall include the plural andthe plural the singular, and the masculine, feminine or neutershall each Include the masculine, feminine and neuter.

(f) Captions. All captions and titles used in this Declaration are intended solelyfor convenience of reference and shall not enlarge, limit or otherwiseaffectthat whichis set forth in any of the paragraphs or sections hereof.

(g) Notice. Whenever written notice to an Owner Is permitted or required hereunder, such notice shall be given by mailing such notice to the address of such Owner appearing on the records of the Declarant, unless such Owner has given written notice to the Declarant of a different address, In which event such notice shall be sent to the Owner at the address so designated. Such notice shall conclusively be deemed to have been given as of Irte date such notice Is deposited in the United States Mail, certified mail, return receipt requested, properly addressed, whether actually received by the addressee or not.

CERTIFICATE The page to which this certificate is affiled may have been altered to redact confidential personal Information but is otherwise a full, true and correct copy ofthe original on file and of record in my office.

ATTESTED: GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: 0 K.l'-f Deputy Tab 9, Page Date 9 of 15 (h) Governing Law. This Declaration shall be governed by and construed In accordance with the laws of the State of Texas and shall be performableIn Bexar County, Texas.

(i) Counterparts. This Declaration may be executed In one or more counterparts, each of which shall be deemed an original, butall of which together shallconstitute one and the same instrument.

EXHIBITS: Exhibit A- Property

AFTER RECORDING. RETURN TO: Ms. Jamie M. Wilson Wilson & Wilson Law, P.C. 3303 Oakwell Court, Suite 110 San Antonio, Texas 78218

M:\BBAShavsno Crook CcmmerciallB&MVDedaraUon.Sdac

page to which this certificate is affixed may have been altered to redact confidential personal information but is otherwise a full, true and correct copy of the original on file and of record in my office.

ATTESTED: GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: 1(U(f Deputy Tab 9, Page Date 10 of 15 SIGNATURE PAGE TO DECLARATION OF PROTECTIVE COVENANTS

DECLARANT:

SHAVANO CREEK COMMERCIAL PARTNERSHIP UNIT 1, LTD., a Texas limited partnership

By Its Sole General Partner: Bitterblue, Inc., a Texas corporation

STATE OF TEXAS

COUNTY OF BEXAR

This instrument was acknowledged before me on December. \ih 2007, by Lloyd A. Denton, Jr., President of Bitterblue, Inc., a Texas corporation, the sole General Partner of Shavano Creek Commercial Partnership Unit 1, Ltd., a Texas limited partnership, on behalf of said limited partnership.

MEUSA ROSE WALKER Notify Puftlfc, State of Texas ! MyCommission Expires ^'ziW Hovembw 02.2008 6. Notary Public, State of Texas

/-S»««3jv CERTIFICATE v^"A~X \ The page towhich this certificate isaffixed may have been altered toredact confidential personal Information but is otherwise a full, true and correct copy of the original on file and of record in my office.

ATTESTED: GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: lUrl^ Deputy Tab 9, Page Date 11 of 15 EXHIBIT A

PROPERTY DESCRIPTION

PAPEDAWSON ENGINEERS

LANS lEmOPMFjr [HVIROHtfEKTAl TRAHSPOmilOH WATER fttSflURSES MRWINE

FIELD NOTES FOR A 3.079 acre,or 134.111 squarefeet more or less, tract of land, being out of Lot 1813, County Block5938in the SluvanoPark, Unit 16A-1 Subdivision recorded in Volume 9553, Page 56 of the Deed andPint Records of Bexar County, Texas in Bexar County, Texas, oat of the Collin C McCrae Survey Number 391, Abstract 482, CountyBlock 5938. Said 3.079 acre tract being more fully described at follows with the bearing beingbased on the North AmericanDatum of 1983 (CORS 1996), from the Texas Stale Plana Coordinate System established for the South Central Zone with the reference bearingbeingthe southeast line of said Lot 1813: BEGINNING: At a found nailandcap on the northeast right-of-way line of Lockhill Sclraa Road,an 86-foot right-of-way, (he southwest coiner ofsaid Lot 1813, the south coma of Lot 1403 and the south comer of Lot 1404 both of Sbavano Park, Unit I6A recorded in Volume 9509, Pages 209-212 of the Deed and Plat Records of Bexar County, Texas;

THENCE: N 47'42,29- E, departing from the northeast right-of-way of said Lockhill Selms Road, along and with a northwest line of said Lot 1813, the southeast lineof saidLot 1404, a distance of 173.86 feetto a found K" ironrod with cap marked "BPI" at a north cornerof said l-ot 1813, tho west comer of Lot 1814 of said Shavono Park, Unit I6A-1;

THENCE: S48°I6,H"E, alongandwith t soulhwesl lineofsaidLot 1814,a northHnc of said Lot 1813, a distance of 260.73 feet to a found W iron rod with cap marked"BPI" at a south comer of said Lot 1814,a reentrantcomer ofsaid Lot 1813;

THENCE: N 4)>50'46" E, alongand with the Multicast line ofsaid Lot 1814,a northwest line of said Lot 1813,a distance of214.67feet to a found W ironrod with cap marked "BPI" at a north comer of said Lot 1813, a reentrant comer

THENCE: S 4S°09'14" E, alongand with a northeast line of said Lot 1813,a southwest line of said Lot I8l4,adistanccof204,21 feetto a found PIC nail at a comer of saidLot 1814, the east comerof saidLot 1813, on the northwest right-of-way lineof Huebner Road,a 110-footright-of-way;

THENCE: S 4I°S0,46" W, along and with the northwest right-of-way line of said Huebner Road, the southeast line ofsaid Lot I8l3,adistanocof36I12 fcetto a set 'Ainch ironrod with yellowcapmarked"Pape-Dawson";

5SS Em feraicy Sao AttWOIo.T«|M )S*|6 ? 310.373.3000 F II0.37S.?*™

CERTIFICATE The page to which this certiflcale is affixed may have been altered to redact conlldential personal information but is otherwise a full, true and correct copy of the original on file and of record in my office.

ATTESTED: GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: VllrN Deputy Tab 9, Page Dale 12 of 15 3.079 Acres Project No. 9318-07 Page 2 of2

THENCE: N 48°4I'U" W, departing from the northwest right-of-way line of said HuebnerRoad, over and acrosssaid Lot 1813,a distance of 21.70 feet to a set 'A inch iron rod with yellow cap marked "Pape-Dawson' at a. pointof non- tangent curvature;

THENCE: Along the arcof a curveto theright,continuingover and acrosssaid Lot 1813, saidcurvehaving a radial bearing of N 18°33'09" W, a radius of50.46 feet,a central angleof S5"58*20", a chord bearing and distance of N 80*33'S9* W, 47.36 reel, foran arc length of 49.29 feetto a set K inch ironrodwith yellow capmarked"Pape-Dawson" ata pointofnon-tangenoy;

THENCE: S 4i°i8'56" W, continuing over and across said Lot 1813, a distanceof44.71 feel to a set Vi inch ironrod with yellow capmarked "Pape-Dawson* on the northeast right-of-way line ofsaid Lockhill SefanaRoad;

THENCE: N 42"1T31" W, along andwiththenortheast right-of-way lineof said Lockhill Sclma Road, the southwest line of said Lot 1813,a distance of 423.65 feet to the POINT OF BEGINNING and containing 3.079 acres in Bexar County, Texas. Said tract being described in accordance with a survey made on the ground anda survey mapprepared by Pape-Dawson Engineers, Inc. PREPARED DY: Ptpo-OtwaoaEngineer!, Inc. JOB Mo; 41184? DATE September 17,2007 DOC.ID: N:\Suve>07\74Wff)IS-07\WORltfN J.079 AC.OOC

PAPE-DAWSON ENGINEERS

CERTIFICATE The page to which this certificate is affixed may have been altered to redact confidential personal Information but is otherwise a full, true and correct copy of the original on file and of record In my office.

ATTESTED: GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: Deputy Tab 9, Page a-ivvl- Date 13 of 15 Doc# 20070289789 # Pages 14 12/17/2007 15:05:08 PM e-Filed & e-Recorded in the Official Public Records of BEXAR COUNTY GERARD RICKHOFF COUNTY CLERK

Fees 64.00

STATE OF TEXAS COUNTY OF BEXAR This is to Certify that this document was e-FHED and e-RECORDED in the Official Public Records of Bexar County, Texas on this date and time stampea thereon. 12/1772007 15:05:08 PM COUNTY CLERK, BEXAR COUNTY TEXAS

!<•»*«' (uu£.W

CERTIFICATE The page to which this certificate is affixed may have been altered to redact confidential personal information but is otherwise a full, true and correct copy of the original on file and of record in my office.

ATTESTED: GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: Deputy Tab 9, Page 1-K.-W Date 14 of 15 Gerard Rickhoff

COUNTY CLERK BEXAR COUNTY

BEXAR COUNTY COURTHOUSE 100 DOLOROSA, SUITE 104 SAN ANTONIO, TEXAS 78205

CERTIFICATE

STATE OF TEXAS §

COUNTY OF BEXAR §

I, GERARD RICKHOFF, COUNTY CLERK OF BEXAR COUNTY, TEXAS, DO HEREBY CERTIFY THAT THE FOREGOING IS A TRUE AND CORRECT COPY OF THE OFFICIAL PUBLIC RECORDS OF REAL PROPERTY OF BEXAR COUNTY, TEXAS, NOW IN MY LAWFUL CUSTODY AND POSSESSION AS SAME APPEARS OF RECORD FILED IN:

VOLUME I'bQLele PAGE

IN TESTIMONY WHEREOF, WITNESS MY HAND AND OFFICIAL SEAL OF OFFICE GIVEN IN THE CITY OF SAN ANTONIO, BEXARCOUNTY, TEXAS, ON THIS J-lAW. DAY Of33u&m A.D., 20 j.4 0 GERARD RICKHOFF itn'iu. \>'v .o*v COUNTYCLERK BEXAR COUNTY, TEXAS /.

\

BY: \—

Deputy Coun

ANY PROVISION HEREIN WHICH RESTRICTS THE SALE, RENTAL, OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF RACE, COLOR, RELIGION, SEX, HANDICAP, FAMILIAL STATUS OR NATIONAL ORIGIN IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.

Tab 9, Page 15 of 15