DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

FOR

KINKAID-MILBY TRACT

This Declaration of Covenants, Conditions, and Restrictions (the “Declaration”) is made this day of , 2014 by The Kinkaid School, Inc., a Texas non-profit corporation (“Kinkaid”), and the Stillforest Neighborhood Committee, a Texas non-profit corporation formerly an unincorporated association (the “Association"). The provisions of this Declaration are for the benefit of (i) all owners of any portion of the real property contained in Stillforest Subdivision (such Subdivision being herein called “Stillforest” and such owners herein called “Stillforest Owners”), an unrecorded subdivision being the same real property encumbered by Restrictions (the “Stillforest Restrictions”) dated December 26, 1947, recorded at Volume 1706, Page 673 of the Deed Records of Harris County, Texas, as amended by the amended restrictions recorded under Harris County Clerks File No. J287409 on December 20, 1983 in the Official Public Records of Real Property in Harris Country, Texas, as renewed from time to time, most recently by Renewal and Extension of Reservations, Restrictions and Covenants of Stillforest Subdivision dated February 2, 2012, recorded under Clerk’s File No. 20120045675 of the Official Public Records of Real Property of Harris County, Texas, whether or not replatted into additional or successor subdivisions, (ii) the Association, and (iii) Kinkaid. (Kinkaid and the Association may be collectively referred to as the “Parties” or individually as a “Party”.)

RECITALS:

A.  Stillforest is a single-family residential community located in the City of Piney Point Village, Harris County, Texas (the “COPPV”).

B.  The Association is a “Property Owners Association” as that term is defined in the Texas Property Code and its membership consists of all Stillforest Owners. By joining in the execution of this Declaration, the Association is acting in its capacity as the designated representative of the Stillforest Owners.

C.  Kinkaid is a private educational institution providing elementary, middle and high school education.

D.  Kinkaid is now located on a 40.76 acre tract of land east of Stillforest described in that certain deed dated October 4, 1990 recorded under County Clerk’s file number M68828, film code number 191-63-0542 of the real property records of Harris County, Texas (the “Kinkaid Tract”) and separated by a 24.53 acre tract previously owned by the Milby family and used for single-family residential purposes (the “Milby Tract”), being further described in a Special Warranty Deed dated September 21, 2010, recorded under Clerk’s File No. 20100407514 in the Real Property Records of Harris County, Texas on September 22, 2010 (the “Milby Deed”). Kinkaid acquired the Milby Tract, subject to the terms of that certain Memorandum of Life Tenancy and Protective Covenants executed September 21, 2010, and recorded under Clerk’s File No. 20100407515 on September 22, 2010, in the Real Property Records of Harris County, Texas (the “Memorandum”). The Memorandum limits Kinkaid’s access to and use of the Milby Tract during the life of Marjorie Jester Milby (“Mrs. Milby”).

E.  Kinkaid acquired the Milby Tract to expand its educational facilities.

F.  Kinkaid wishes to obtain from COPPV the right to develop and use the Milby Tract for school and educational purposes and to obtain the consent of the Association to such use subject to this Declaration and to that certain Agreement Regarding the Milby Tract of even date herewith between the Association and Kinkaid restricting the uses to which the Milby Tract may be used (the “Milby Tract Agreement”). As between the Parties, this Declaration and the Milby Property Agreement are complementary documents and share equal standing. It is the intention of the Parties that both documents will be construed together and given that interpretation or construction which will best effect the intent of the Parties as therein reflected.

G.  Kinkaid intends to seek COPPV approval for a change in the use of the Milby Tract to permit the use of the Milby Tract for school and educational purposes. Kinkaid and the Association are executing this Declaration (i) to limit the use of the Milby Tract, (ii) to permit the development of the Milby Tract subject to the limitations and restrictive covenants contained in this Declaration and (iii) to limit and restrict the use of the Milby Tract at the request of the Association and the Stillforest Owners. Both the Declaration and the Milby TractAgreement will be recorded in the Real Property records of Harris County, Texas.

COVENANTS:

NOW, THEREFORE, for and in consideration of Kinkaid and the Association entering into this Declaration and into the Milby Property Agreement, the Parties hereto, for themselves and their successors and assigns, do hereby agree and declare that the Milby Tract shall be held, transferred, sold, conveyed and occupied subject to the restrictions hereinafter set forth which shall run with the land for the term herein set forth and shall be binding upon all parties having any right, title, or interest in or to the Milby Tract, or any part thereof, and their heirs, successors, representatives and assigns, and shall also be binding on the Association. The restrictions hereinafter set forth are covenants running with the title to the Milby Tract at law as well as in equity. In no event shall anything in this Declaration apply to the Kinkaid Tract or its use or to the Stillforest Subdivision.

1. Drainage. Kinkaid or the owner of the Milby Tract shall be restricted from denying or preventing storm water from lots in Stillforest which currently drain toward the Milby Tract to continue to be drained onto the Milby Tract to the extent impermeability of those lots in Stillforest which currently drain toward the Milby Tract does not exceed 50% of the surface area of those lots as required by current COPPV ordinances. The Association will not knowingly alter the course of the existing drainage patterns that would materially and adversely affect the natural drainage patterns or take any action that would change drainage flows from the street or its culverts to direct additional drainage toward or onto the Milby Tract. Kinkaid may remove the existing Milby Tract ravine from its current drainage location, and replace it with an underground storm sewer, measuring not less than 48 inches in diameter which is placed entirely east of the 62-foot Buffer Zone (as hereinafter defined) and further provided that such modification to the drainage patterns has been fully approved by COPPV and by the Harris County Flood Control District, provided the same does not diminish the current drainage capacity, or create a drainage problem in Stillforest that did not exist prior to such work. Such prospective drainage pattern and intention shall be made a part of any platting of the Milby Tract if permitted by COPPV. The 10-foot wide necessary work area for the installation of the piping and underground storm sewer will be located underneath the Gravel Service Drive (as hereinafter defined). Any additional easement required by municipal and flood district authorities will be platted and installed centered on a line that is located 62 feet to the east of the western boundary of the Milby Tract; provided that any additional easement area may not be located closer than 52 feet from the western Milby Tract property line; and provided further that no part of the area that is located within the Buffer Zone may be used as an above ground swale that runs generally from north to south, or as a ditch, detention or pooling area. Further, Kinkaid agrees that it will not reverse the direction of the existing natural surface drainage so as to adversely impact Stillforest. Nothing in this Declaration will limit or restrict Kinkaid's legal remedies against any Stillforest Owner who changes the drainage patterns onto the Milby Tract, and who Kinkaid believes has harmed Kinkaid as a result of such change in the drainage patterns. The Association will not be in violation of the terms of this Declaration if it is acting in accordance with any drainage plan approved by COPPV or the then appropriate governing or municipal entity, but such approval shall not prevent Kinkaid from seeking or obtaining compensation for a taking by condemnation or otherwise.

2.  Buffer Zone. There will be a permanent buffer area on the Milby Tract that is not less than 62 feet wide nor more than 100 feet wide, as measured from west to east, starting at the north end of the western Milby Tract property line and running the entire north-to-south length of the western Milby Tract property line (the “Buffer Zone”). The 62-foot wide portions of the Buffer Zone shall extend along such western Milby Tract property line for no more than 900 lineal feet in aggregate and shall be located wherever Kinkaid designates, from time to time, along such property line; provided, however, that Kinkaid’s right to change the location and designation of the permited 62-foot wide sections of the Buffer Zone shall be limited as set forth below in this paragraph 2. The portions of the Buffer Zone other than the total permitted 900 aggregate lineal feet of the Buffer Zone designated as 62 feet wide shall be not less than 100 feet wide, as measured from west to east, and shall be interrupted only by the maintenance roadway and nature trail described below.

When designating a portion of the Buffer Zone to be 62 feet wide, Kinkaid shall be subject to the following limitations: (i) Kinkaid may not designate less than 100 continuous linear feet of the Buffer Zone to 62 feet wide, (ii) until Kinkaid designates any portion of the Buffer Zone to be 62 feet wide, all of the Buffer Zone shall be 100 feet in width, and (iii) Kinkaid may only make a change in the designation of which portions of the Buffer Zone that will be 62 feet wide or 100 feet wide, as applicable, once every five (5) years.

In the event of such re-designation, Kinkaid shall give written notice to the Association by providing the Association the following: (i) a survey certified to ALTA (American Land Title Association) standards (or successor or comparable standard for a commercial mortgage loan) to both Kinkaid and the Association showing (a) the Milby Tract, and those portions of the Buffer Zone that it is re-designating to/from 62 feet wide and 100 feet wide, as applicable, (b) that an aggregate of not more than 900 feet of the Buffer Zone is less than 100 feet wide, and (c) all improvements adjacent to the Buffer Zone, and (ii) a revised Buffer Landscape Plan (as defined herein below) for the former 62-foot sections which are now included within the 100-foot section of the Buffer Zone. When re-designated by Kinkaid as permitted in this Declaration, a memorandum shall be executed by the Kinkaid confirming that the provisions of the re-designation process have been fulfilled. The memorandum, along with the updated Buffer Landscape Plan shall be filed in the Real Property Records of Harris County, Texas. After re-designation, Kinkaid shall implement the revised Buffer Landscape Plan to cause any re-designated portion of the Buffer Zone to become properly landscaped as required herein. The landscaping work on any re-designated portion of the Buffer Zone shall be implemented as soon as reasonably practical, depending upon seasonal conditions. Such re-designated areas shall be landscaped in such a manner as to be similar to the other portions of the Buffer Zone unless required to the contrary by other provisions of this Declaration or the Milby Tract Agreement.

The Parties expressly agree that the purpose of the Buffer Zone is to provide protection from sight of buildings and other structures erected on the Milby Tract and protection from sound pollution for the benefit of Stillforest Owners and residents from athletic, educational and other activities that occur on the Milby Tract. Therefore, no part of the Buffer Zone may be used for any purpose other than as set forth in this Declaration, which may be modified as provided in this Declaration.

The restrictions regarding the Buffer Zone described above notwithstanding, Kinkaid will be allowed to have a nature trail in the areas between the 62-foot setback and the 100-foot setback portions of the Buffer Zone, which nature trail will not average more than 8 feet in width over a 50-foot section. While the nature trail and the Gravel Service Drive (as defined below) may intersect and overlap within the space between the 62-foot setback and 100-foot setback portions of the Buffer Zone, the nature trail and the Gravel Service Drive may not run parallel so as to create a continuous large open space in the Buffer Zone. The permitted pedestrian pathways (as further described in the Agreement) will be limited to 2 walkways that penetrate the entire Buffer Zone with the access to the 2 pedestrian pathways from individual lots of Stillforest to be identified on the Buffer Landscape Plan.

3.  Use of Buffer Zone. The Buffer Zone may not be used for any purpose other than as a heavily forested and planted sight and sound buffer. No portion of the Buffer Zone may be used as (i) a spectators area, (ii) a playground or other recreational area, (iii) a resting or standing area for spectators, athletes, or students, (iv) a runway or open area where participants in an athletic event could regularly run into when participating in an athletic event that may occur on a Milby Sports Field or Other Sports Facility (both as hereinafter defined) that might abut the Buffer Zone, or (v) for any other activity or purpose other than as a sight and sound buffer. The preceding sentence notwithstanding, the Buffer Zone may be used only for the additional limited purposes as expressly provided for in this Declaration, including only the Gravel Service Drive, the nature trail, the underground storm sewer, and the fence and access required under the provisions of the Milby Tract Agreement. Other than the exception set forth above in the paragraph labeled “Drainage”, the Buffer Zone may not be used by Kinkaid for utility purposes (such as dedication of utility easements), save and except for utilities imposed by eminent domain proceedings or other government power. Kinkaid agrees that it will not, directly or indirectly, initiate a request or proceeding to place any utilities in the Buffer Zone. In the event of a condemnation, eminent domain or other exercise of police power or governmental authority, Kinkaid shall have the right to settle such dispute by voluntarily conveying the condemned or subject portion of the property to the public use made the subject of such proceedings.