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Easement Agreement Bill & Return to: Uni,/ersity Title Company Doc 2,_= X10:. i'a P.G. Drawer DT 00961313 DR. 7944 201,, College Station, Texas OD 7841 GF# W O3S- PRE-DEVELOPMENT AND EASEMENT AGREEMENT This Pre-Development and Easement Agreement(this"Agreement")is made and entered into by and between Creek Meadows Partners, L.P., a Texas limited partnership (herein referred to as "Creek Meadows"), and E. Hubbard Kennady Family Limited Partnership, a Texas limited partnership (hereinafter referred to as "Kennady"). WITNESSETH: WHEREAS, Creek Meadows is the fee simple owner of that certain tract or parcel of land situated in Brazos County,Texas,more particularly described as a 22.418 acre parcel of land in the Andrew McMahon Survey,A-167,Brazos County, Texas, as described in deed to Creek Meadows recorded in Volume 7633, Page 239, Official Records, Brazos County, Texas, save and except the Kennady Parcel defined below(hereinafter referred to as the "Creek Meadows Parcel"); and WHEREAS,Kennady is the fee simple owner of that certain tract or parcel of land situated in Brazos County,Texas,more particularly described on Exhibit"A"attached hereto and made a part hereof for all purposes (hereinafter referred to as the "Kennady Parcel"); and WHEREAS, the Creek Meadows Parcel and the Kennady Parcel (each, a "Parcel" and collectively,the"Parcels")are shown on the site plan attached hereto as Exhibit"B"and made a part hereof for all purposes (the"Site Plan"); and WHEREAS, Creek Meadows desires to grant to Kennady certain easements as hereinafter set forth,and Kennady desires to agree to certain terms and considerations related to such easements; NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars ($10.00), the mutual benefits accruing to the parties hereto, and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the following grants, agreements, and covenants are hereby made by and between the parties. 1. Easements on Creek Meadows Parcel. Creek Meadows does hereby grant,bargain, sell and convey the following easements to Kennady and all future fee simple owners of the Kennady Parcel for the benefit of the Kennady Parcel: (a) Drainage Easement. (i) A perpetual and non-exclusive easement for the use, construction,installation,repair and maintenance of certain areas and facilities located on the Creek Meadows Parcel intended for utilization as on-site drainage, including, but not limited to, piping, ditches, detention pond and any structures associated with such on-site drainage including,without limitation, the portion of the Creek Meadows Parcel to be designated as the "Detention Area" (all of the foregoing drainage related features are collectively hereinafter referred to as the "Drainage Facilities") and (ii) a perpetual and non-exclusive easement to discharge and/or runoff from the Doc Bi-: Vol Pg 00961311 OR 7944 209 Kennady Parcel over, on, under and across the Creek Meadows Parcel, utilizing the Drainage Facilities for the collection and discharge of such storm drainage and/or runoff. The location and surface area size of the Detention Area shall be determined in Creek Meadows' sole and absolute discretion. (b) Temporary Drainage Construction Easement. A non-exclusive temporary construction easement in, to, on, over, upon and across the Creek Meadows Parcel for the initial construction and installation of Kennady's connection to the Drainage Facilities and related improvements. The easement granted under this Section 1(b) is a temporary easement and will expire on the date which is the earlier to occur of (i) the date on which the construction and installation of Kennady's connection to the Drainage Facilities and related improvements have been completed or (ii) the date that is forty-eight (48) months from the date this Agreement is fully executed by the parties hereto. Kennady's use of such easements granted above shall not be exclusive,but shall be in common with Creek Meadows and Creek Meadows' successors, assigns, invitees, licensees, tenants, agents, employees,and such other and further grantees of easements,licenses and rights over and across the easement areas described above as may from time to time exist. 2. Construction of Drainage Facilities. On or before the date that is forty-eight (48 months from the date this Agreement is fully executed by the parties hereto, Creek Meadows shall, at Creek Meadow's sole cost and expense,complete the construction of the Drainage Facilities(such construction being hereinafter collectively referred to as the"Work"). Prior to commencement of the Work,however,Creek Meadows shall give written notice to Kennady(the"Notice")that Creek Meadows is ready to proceed with the Work,and Kennady shall,within 30 days after the date of the Notice,engage engineers of Kennady's choice for the purpose of designing Kennady's site plans and drainage requirements for the Kennady Parcel. Within 90 days after the date of the Notice,Kennady shall provide Creek Meadows and its engineers with a drainage plan for the Kennady Parcel, so that Creek Meadows and its engineers can design and construct the Drainage Facilities to accommodate Kennady's use under this agreement. The drainage plan presented by Kennady shall require Creek Meadow's consent,which shall not be unreasonably withheld. Kennady shall bear all expense related to the engineering design of Kennady's drainage plan. Kennady shall also pay all material and construction costs required to discharge drainage outflow from the Kennady Parcel to the Drainage Facilities, including, without limitation, the cost of constricting a pipeline to connect to the Drainage Facilities. Creek Meadows covenants that it will design and construct Drainage Facilities which will limit the distance for which pipelines must be constructed by Kennady to 200 feet(or less, at Creek Meadows' discretion). 3. Maintenance of Drainage Facilities. The parties shall cooperate with each other in good faith with respect to such maintenance and repair and to the extent reasonably possible coordinate such repair and maintenance. The Drainage Facilities will be deemed to benefit each of the Parcels. The fee simple owner of the Kennady Parcel will be responsible for the cost of Pre-Development and Easement Agreement between Creek Meadows Partners, L.P. and E.Hubbard Kennady,Family Limited Partnership Page 2 Dor Bl. VolPs 00941311 DR 7944 210 maintenance and repair of Kennady's drainage pipelines within the Drainage Facilities and Creek Meadows, or any property owner's association to whom it assigns its rights and oversight, shall be responsible for the cost of maintenance and repair of the rest of the Drainage Facilities. Kennady shall have no further obligation for maintenance or repairs of the Detention Areas. 4. Default. If there is a failure by either party to perform,fulfill or observe any covenant contained within this Agreement which continues beyond the Cure Period(hereinafter defined),the non-defaulting party may,at its option,cure such failure or breach on behalf of the defaulting party. As used in this paragraph, "Cure Period" shall mean thirty (30) days after written notice to the defaulting party specifying such failure; provided, however, if such failure cannot reasonably be cured within thirty(30)days,the defaulting party shall be entitled to a reasonable time within which to cure such failure so long as the defaulting party commences to cure same within such thirty(30) day period and diligently completes such cure in all events not later than ninety(90)days following receipt of written notice of such default. Any reasonable amount which the non-defaulting party shall expend for the purpose of curing the failure or breach of the defaulting party shall be paid by the defaulting party to the non-defaulting party, within thirty (30) days of delivery of its invoice together with interest at the lesser of (i) the rate of eight percent (8%) per annum, or (ii) the maximum non-usurious rate of interest allowed by applicable law,from the date of the expenditure to the date of payment in full. Nothing in this document creates a lien on either Parcel. 5. Notices. All notices,demands and requests which may be given or which are required to be given by either party to the other shall be in writing and shall be given by being either: (i) sent, by certified or registered mail, return receipt requested, addressed to the intended recipient at the address specified on the signature pages hereof; (ii) delivered in person to the address set forth on the signature page hereof for the party to whom the notice was given; or (iii) deposited into the custody of a nationally recognized overnight delivery service such as Federal Express,addressed to such party at the address specified on the signature page hereof. Notices shall be effective on the date of delivery or receipt, or if delivery is not accepted, on the earlier of(a)the date that delivery is refused or(b)three(3)days after the notice is mailed by certified or registered mail or one(1)day after the notice is deposited into the custody of such overnight delivery service. For purposes hereof, the addresses of the parties for all notices are as set forth on the signature pages hereof(unless changes by similar notice in writing given by the particular person whose address is to be changed). 6. Remedies. No breach of this Agreement shall entitle either party to cancel,rescind, or otherwise terminate the easements granted herein, but such limitation shall not affect, in any manner,any other rights or remedies which the parties may have hereunder by reason of any breach of this Agreement. 7. Further Assurances. Each of the parties agrees to cooperate with each other in good faith in connection with the development, operation and maintenance of the Parcels, and agrees to execute and deliver any additional documents and instruments and to perform any additional acts necessary or appropriate to perform the terms,provisions and conditions of this Agreement and all transactions contemplated by this Agreement. Pre-Development and Easement Agreement between Creek Meadows Partners,L.P. and E.Hubbard Kennady,Family Limited Partnership Page 3 Vol� l P Doi �:r; G 0096131.1. OR 7944 211 8. No Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the easements granted herein to the general public or for any public purpose whatsoever, it being the intention of the parties that this Agreement shall be strictly limited to and for the purposes herein expressed. 9. Platting. The Creek Meadows Parcel and the Kennady Parcel have not been platted as subdivided tracts with any governmental authority. The parties agree that the responsibilities and cost of platting the Parcels shall be Creek Meadows',to be performed at a time in Creek Meadows' discretion within 48 months from date hereof. Kennady agrees to cooperate in good faith in executing plats as requested by Creek Meadows. Notwithstanding the above,Kennady can also elect to plat before the 48 months at his discretion and cost, as long as he completes his grading plan at the time of platting,and Creek Meadows will agree to cooperate in good faith in executing plats as requested by Kennady. 10. Non-Recourse. There shall be no personal liability on the part of any party, or any partner,shareholder,officer,director,or agent of any party,for their performance of any obligations hereunder. 11. Duration and Binding Effect. Except as otherwise provided herein,the easements and restrictions created by this Agreement are intended to be perpetual unless this Agreement is modified, amended, canceled or terminated by the written consent of all of the then record owners of the Creek Meadows Parcel and all of the then record owners of the Kennady Parcel. All provisions of this instrument, including the benefits and burdens, shall run with the land and be binding upon the inure to the benefit of the heirs, personal representatives, successors and assigns of the parties hereto. 12. Amendments. This Agreement may only be amended by an instrument signed by all of the then record fee simple owners of the Kennady Parcel and all of the then record fee simple owners of the Creek Meadows Parcel. Any termination or amendment of this Agreement must be properly recorded. 13. Matters of Record. The easements granted herein are subject to all existing covenants, agreements, easements, encumbrances and restrictions of record and any facts which an accurate survey would show. 14. Section Headings. Section headings,where used herein,are inserted for convenience only and are not intended to be a part of this Agreement or in an way to define, limit or describe the particular sections to which they refer. 15. Invalidation. If any provision of this Agreement is held to be invalid by any court, the invalidity of such provision shall not affect the validity of the remaining provisions hereof, and all remaining provisions shall continue unimpaired, in full force and effect. Pre-Development and Easement Agreement between Creek Meadows Partners,L . and E. Hubbard Kennady,Family Limited Partnership Page 4 Goy_ $i<. Vol 1`w 00961311. DR 7944 21 16. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. 17. Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all signatories had signed the same document. All counterparts will be construed together and will constitute one and the same instrument. [signatures on the following pages] • Pre-Development and Easement Agreement between Creek Meadows Partners,L.P. and E.Hubbard Kennady,Family Limited Partnership Page 5 Goy_ 2k Vol P9 • 00961311 OR 7944 213 EXECUTED effective as of the ' day of , 2007. CREEK MEADOWS: CREEK MEADOWS PARTNERS, L.P., a Texas limited partnership, acted for by its general partner,Baker&Carnes Management, L.L.C. By: 1 V bine: Tod• Carnes Title: M.Z. -m1' By: f' , - Name: Pat Baker Title: Managing Member Address for Notice: Creek Meadows Partners, L.P. 6c4-4-4Ars.) Irl -7-7s 11 Pre-Development and Easement Agreement between Creek Meadows Partners,L.P. and E.Hubbard Kennady,Family Limited Partnership Page 6 Doc Bi: Vol Ps 00961311. OR 7944 214 STATE OF TEXAS COUNTY OF BRAZOS ,, This instrument was acknowledged before me on the c)day of 1,-, , 2007,by TODD CARNES,Managing Member of CREEK MEADOWS PAR 47 S,L.P.,a Texas limited partnership,acted for by its general partner Baker&Carnes Management, .L.C.,on behalf of said entity and in the capacity herein stated. i $ 4 fit;xrv� WM.C,LiPSEY / , NOTARY PUBLIC . fi*.'l STATE of TEXAS No►. ublic in and ,or the State of Texas 11.OFh*p MY COMM.EXP.MAY 1,2008 STATE OF TEXAS COUNTY OF BRAZOS This instrument was acknowledged before me on the (.}0 day of 1 , 2007, by PAT BAKER, Managing Member of CREEK MEADOWS PARTNE S, L.P., a Texas limited partnership,acted for by its general partner Baker&Carnes Management,L.L.C., on behalf of said enti _ : -_ --- T. ; stated. �'pY PU ELIZABET E.D ` i� ��'�° NotaryPublic,State of Texas l ' 4 1110*i �* E Commission E 2010 1 20P.JE- /t +� DECEMBER 28, 1 _7��/ F 4 c „4,,„ 1— — — — — — — — _ _ Notary blic in and for the State of T xas Pre-Development and Easement Agreement between Creek Meadows Partners,L.P. and E.Hubbard Kennady,Family Limited Partnership Page 7 Doc 8k Vol Ps 00961311 OR 7944 71':. KENNADY: E. HUBBARD KENNADY FAMILY LIMITED PARTNERSHIP, Texas limited partnership -74 By: /Kde-...ef Name: ti 14 �-��' Title: Com- -.--e 66'z- - e...0-r- Address for Notice: 4'2-4 f 7., c-}- STATE OF TEXAS COUNTY OF BRAZOS This ' s ent was ackn wledged before me on the �0kda of A e J 2007, by . 14-CAA/At c. .r^ i -„% of E. HUBBARD KENNADY FAMILY LIMITED P TNERSHIP., a Texas limited partnership, on behalf of said partnership. - ------ --- - W ._,�EY � � jjj �S�Y P�C . NOTARY PUBLIC / A2° STATE MY COMM t EOP .MAY TEXAS.2008 - '+ •11c ' d for the State of Texas Pre-Development and Easement Agreement between Creek Meadows Partners, L.P. and E.Hubbard Kennady,Family Limited Partnership Page 8 F:I USERILISAI WPDOCSIREICreekMeadows.Kennadv.Pre-Development&Easement.N pd Doc Bi-. Vol 00961311 311 _`R 7944 216 Exhibit A Metes and bounds description of all that certain tract of land lying and being situated in the Andrew McMahon Survey, Abstract No. 167, Brazos County, Texas. Said tract being a portion of a called 22.418 acre tract as described by a deed to Creek Meadows Partners, L.P. recorded in Volume 7633, Page 239 of the Official Public Records of Brazos County, Texas. Said tract being more particularly described by metes and bounds as follows: BEGINNING at a 1/2 inch iron rod found on the northwest line of Greens Prairie Road (a county maintained public road) marking the southwest corner of said 22.418 acre tract and the southeast corner of Lot 3A, Benjamin Graham Subdivision, according to the plat recorded in Volume 2463, Page 329 of the Official Public Records of Brazos County, Texas; THENCE: Along the common line of said 22.418 acre tract and said Lot 3A for the following calls: N 03°27'00" W for a distance of 725.85 feet to a 1/2 inch iron rod found; S 88°03'03" E for a distance of 16. 92 feet to a 1/2 inch iron rod found; N 03° 34' 22" W for a distance of 26.58 feet to a 5/8 inch iron rod set marking the north corner of this herein described tract, for reference a 1/2 inch iron rod found marking the northeast corner of said Lot 3A bears: N 03° 34' 22" W for a distance of 92. 96 feet; THENCE: Through said 22.418 acre tract for the following calls: S 42°39'53" E for a distance of 368.04 feet to a 5/8 inch iron rod set; S 42° 55' 42" W for a distance of 144. 63 feet to a 5/8 inch iron rod set; S 03° 27' 00" E for a distance of 227. 93 feet to a 5/8 inch iron rod set on the northwest line of Greens Prairie Road marking the southeast corner of the herein described tract; THENCE: S 42°55'42" W along the northwest line of Greens Prairie Road for a distance of 200.00 feet to the POINT OF BEGINNING containing 2.30 acres of land, more or less. • 4a/G19C 1016410 Arun /0034 Naoan3M 'S vtil/8CC NVIUG 40 .1.110 1, 1'\i{:.�, itVO Lf NVAa8 AO A113 'f j'•t,\�:rj C; �� �,,. 6C/66I. 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Sun la 3/1351/3 t NOlII HONI Big x °JR� -X .443 •4' C•c% W3 - O N d Z%l dWo - ONcm1O! q MOW H3Ni z/1 MYNA. 3210V 81.4'ZZ (5` e l SM3N_LNVd SMOCI 3W N33H3 U. 3/N 13s 004 \\\ Noal HONI Q/C • \ o,S0 z \ „� co.ae s o ,00 l - ,, I :3-IVO S V� M „ZZ�P C0 N na N wO - ONroa awlCLOWLSI0 1v5N6ddV NOM NOM Z/l A1Nfio3 SOZVaO aad) 101/211 32:01d Z4'[ 2130AOH VH1L1vWt ONV 01vN00 ...I/kJ • --O' `//P g z t 9/8 INCH IRON 1 2 WATER LINE EAROD SET 1128/16.5 to 0 N 2.30 ACRES / �'• /In z ati. 03 ti b/9 INCH IRON `'.7 Ix, EASEMD.ENT HONE EH ROD SET II L 1201/398 k 73R/2D2 o � O M N 0 165.00 /.• M h- o N /z N W d /O N O v)/ / ` ., / %, ROBD SET IRON / c°9 LEOENDr � ‘ t9 TELEPHONE PEDESTAL POINT OF / 0 FIBER OPTIC RISER BEGINNING o- ((DUTY POLE 1/2 INCH IRON --t GUY WIRE ANCHOR ROD FOUND - CM D,. :-�"r\"-•`,-� AERwt ELECTRIC LINES Gj , \ �: (�I" ? h �:", BARRED MARE FENCE \ . �•. � u'V L' u J+� Nt,4 � 1);.w,I)I<1:RFL y, .,...„,,,..,,...!„,.. THE FOLLOWING BLANKET EASEMENTS , \‘‘:.:1,1",!'9/;,;Cf;• \9,::.16;1. DO APPLY 70 THIS TRACT: :Le, •,,i 1. LONE STAR CAS COMPANY 140/472 1C-�w0 r.,� .��• , 2. LONE STAR GAS COMPANY 19a/50 �;<�, :7;1.3i-L\',-...�� 3. CITY OF BRYAN 310/314 / `'^moi'" ~ 4, CITY OF BRYAN 378/194 5. WELLBORN SPECIAL UTILITY DISTRICT 3643/2.74 • 200 METES OR BOUNDS PREPARED MARCH LAND TITLE SURVEY PLAT 2007, FOR MORE OESCRIPIIVE INFORMATION. CM - CONTROWNG MONUMENT FOUND AND OF A USED TO ESTABLISH PROPERTY LINES. BEARING SYSTEM SHOWN HEREON IS BASED ON 2.30 ACRE TRACT GRID NORTH AS ESTABLISHED FROM CPS ANDREW McMAHON SURVEY A-167 OBSERVATION. r BRAZOS COUNTY, TEXAS SCALE: 1 INCH a 60 FEET I. I AD 'S CERTIRCATEe SURVEY DATE: MARCH 2007 I. RRAD KERR. R.PL9. NO. 1502. 00 HEREBY CERTIFY'HAT TO THE BEST OF NY KNOWLEDGE TES FIAT 19 A TRUE REPRESENTATION of A SURVEY NAbE ON THE GROUND UNDER WY SUPENvISION AND PLAT DATE: 03-22-07 THAT MERE ARE NO VISIBLE ENCROACHMENTS ON THIS TRACT EXCEPT AS SHOWN HEREON. JOB NUMBER; 07-250 WS TRACT MES NOT LIE IIN A O.�AO020CRCLEA0 �ao • THE F.I.RM. APSCONMUNIYPANEL NO41G0fTC1VE DTE; 7� , z. CAD NAME: 07-250 CR5 FILE: 06-873 • BRAD XERR PREPARED BY: KERR SURVEYING, UI_C REGISTERED PROFEasaNAL SOS CHURCH STREET, P.O. BOX 269 LANG SURVEYOR No, 4302. COLLEGE STATION, TEXAS 77641 PHONE (979) 28B-3195 41"• -`- - -° 0ric RR Vol P:; 00961311 OR 7944 21C Filed for Record in: • BRAZ0S COUNTY 0n: Nag 010007 at 02:54F As a Recurdinss Document Number: 00961311 Amount 51.06 Receipt Number - 314866 8y, Lyon Greer STATE OF TEXAS COUNTY OF DRAZDS I hereby certify that t'nis instrument wus filed on the date and time stomped hereon by ue and was doh' recorded in the vblume and nuye of the Official Public records of: BRAZOS COUNTY as stumned hereon hy me. 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RECITALS SRG is the owner a tract of land described as Lot 3B, University Town Center Subdivision Phase ONE according a plat recorded in Volume 8094, Page 29 of the Official Public Records of Brazos County, Texas (the Property"). The Property is burdened along the southeast boundary by (i) a ten (10) foot public utility easement as described in an instrument recorded in Volume 8094, Page 29 of the Official Records of Brazos County, Texas, and (ii) an adjacent five (5) foot wide public utility easement as described in a plat recorded in Volume 8094, Page 29 of the Official Public Records of Brazos County, Texas (collectively, the two easements are referred to in this Agreement as the "Easement".) In order to meet the grading requirements for the development of the Property, fill is required along the southeast boundary of the Property to raise the elevation of the Property. In order to retain the fill on the Property, a retaining wall will be constructed that will be located in the Easement. The City is concerned that if maintenance or repair is required on the eight (8) inch sewer line currently located in the Easement, there will be limited access for maintenance equipment to operate in order to dig to the sewer line. The parties have entered into this Agreement to address the City's concerns. AGREEMENT 1. Retaining Wall. The City consents to the construction, restoration and maintenance of the above described retaining wall in the Easement. SRG agrees that it will, at its sole cost, be responsible for restoring and/or repairing the retaining wall in the event that it is (i) damaged during maintenance or repair of the sewer line or (ii) removed by the City, in the exercise of its reasonable judgment, to allow safer maintenance or repair. City agrees that, since SRG indemnifies the City as set forth in Section 3 below, in the event the retaining wall needs to be removed, in whole or in part, for the maintenance or repair of the sewer line, City will engage a structural engineer to be responsible for the design for any shoring or removal procedure. 2. Grant of Easement. SRG grants to the City a non-exclusive temporary construction easement over the Property for the limited purpose of repairing and maintaining the sewer line. This easement allows the City to use portions of the Property not covered by buildings to [i] maintain or repair the sewer line; [ii] store construction material and equipment; [iii] temporarily store excavation spoils; and [iv] perform other activities reasonably necessary to repair or maintain the sewer line. The City shall promptly restore the Property, except the retaining wall, as nearly as practicable to its pre-existing condition when the maintenance or repair of the sewer line is complete. The City shall use good faith efforts to contain the construction and maintenance activities to the land covered by the Easement and utilize the temporary construction easement only to the extent necessary for repairing or maintaining the {00321928} sewer line. The City will use good faith efforts to minimize disruption to the business activities being conducted on the Property. The temporary construction easement is granted subject to all matters reflected in instruments recorded in the Official Records of Brazos County, Texas and any condition that would be revealed by physical inspection or survey of the Property. The temporary construction easement granted in this instrument is appurtenant to and will run with the Property, whether or not it is referenced in any conveyance or any portion thereof. The easement created by this Agreement will exist on the Property for so long as there is a public sewer line located in the Easement. The City agrees to use good faith efforts to notify, in advance, SRG or its successors of its need to use the Easement or the Property in advance of such use. 3. Indemnity. SRG agrees to and shall indemnify and hold harmless and defend the City, its officers, agents and employees from and against any and all claims, losses, damages, causes of action, suits and liability of every kind, including all reasonable expensive litigation, court costs, and reasonable attorney's fees, for injury or death of any person or damage to any property arising out of or in connection with the failure of the retaining wall during maintenance or repair of the sewer line, except the extent that any of the foregoing is cause by the negligence or willful misconduct of the City, its officers, agents and/or employees. 4. Notices. Any notice or communication required or permitted hereunder will be deemed to be delivered, whether or not actually received, when deposited in the United States mail, postage fully prepaid, registered or certified mail, and addressed to the intended recipient at the address shown, and if not shown, then at the last known address according to the records of the party delivering the notice. Notice given in any other manner will be effective only if and when received by the addressee. Any address for notice may be changed by written notice delivered in the same manner. 5. Binding Effect. All covenants, agreements, warranties, and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns. 6. Controlling Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Texas. The obligations hereunder are performable in Brazos County, Texas. 7. Severability. If any of the terms and conditions hereof shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other of the terms and conditions hereof and the terms and conditions hereof shall thereafter be construed as if such invalid, illegal, or unenforceable terms and conditions had never been contained herein. 8. Entire Contract; Modification. It is understood that this Agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrangements, or understandings, written or oral, between the parties relating to the subject matter. No oral understandings, statements, promises or inducements contrary to the terms of this Agreement exist. This Agreement cannot be changed or terminated orally. No verbal agreement or conversation with any officer, agent or employee of the {00321928} CITY, either before or after the execution of this Agreement, shall affect or modify any of the terms or obligations hereunder. 9. Interpretation. If one or more of the provisions of this Agreement are invalid, illegal or unenforceable in any respect, to the extent the invalidity or unenforceability does not destroy the basis of the bargain among the parties, it will not affect any other provision and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never existed. When required by the context, singular nouns and pronouns include the plural and the neuter includes the masculine or feminine gender. The Article and Section headings are for convenience of reference only and are not intended to limit or define the text. This Agreement is not to be construed more or less favorably between the parties by reason of authorship or origin of language. 10. Further Assurances. In connection with this Agreement as well as all transactions contemplated by this Agreement, each signatory party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement in all such transactions. 11. Recitals. Any recitals in this Agreement are represented by parties hereto to be accurate, and constitute a part of the substantive agreement. 12. Authority. The parties to this Agreement warrant and represent to one another that they have the power and authority to enter into and perform their respective obligations under this Agreement and the names, titles and capacities herein stated and on behalf of any entities, persons, estates or firms represented or purported to be represented by such person, and that all formal requirements necessary or required any state and/or federal law or private agreement in order for the parties to enter into and perform their respective obligations of this Agreement have been fully complied with. 13. Amendment. No amendment to this Agreement shall be effective and binding unless and until it is reduced to writing and signed by duly authorized representatives of CITY and SRG. 14. Waiver. Failure of any party, at any time, to enforce a provision of this Agreement, shall in no way constitute a waiver of that provision, nor in any way affect the validity of this Agreement, any part hereof, or the right of the party thereafter to enforce each and every provision hereof. No term of this Agreement shall be deemed waived or breach excused unless the waiver shall be in writing and signed by the party claimed to have waived. Furthermore, any consent to or waiver of a breach will not constitute consent to or waiver of or excuse of any other different or subsequent breach. 15. Representation. SRG represents and warrants that no member of the College Station City Council has an interest in the Property, and that the same are not owned or leased by any member of the College Station City Council. SRG further represents and warrants that no member of the College Station City Council is under contract either directly or indirectly with SRG, or its respective agents, contractors or subcontractors. 16. Immunity. By entering in to this Agreement, the City does not consent to suit, waive its governmental immunity or the limitations as to damages contained in the Texas Tort Claims Act. (00321928} 17. Counterparts. To facilitate execution, this Agreement may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature and acknowledgment of, or on behalf of, each party, or that the signature and acknowledgment of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Agreement to produce or account for more than a single counterpart containing the respective signatures and acknowledgment of, or on behalf of, each of the parties hereto. Any signature and acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures and acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature and acknowledgment pages. Executed as of the taking of acknowledgements to be effective as of the day of , 2015. Sahara Realty Group LTD. By: Capital Realty Partners, L.L.C., its general partner By: David W. Scarmardo, Manager CITY: City of College Station By: Name: Title: THE STATE OF TEXAS § COUNTY OF BRAZOS § This instrument was acknowledged before me on the day of , 2015, David W. Scarmardo, manager of Capital Realty Management, L.L.C., general partner of Sahara Realty Group, LTD. on behalf of said limited liability company. Notary Public in and for State of Texas {00321928}