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Francis Throop Survey, Abstract No. 1511 - Non-Exclusive Utility, Drainage, Wall Easement Agreement in Settlement for Condemnation Electronically Recorded Tarrant County Texas Official Public Records 1 2/61201 2 10:37 AM D212298601 ,,� ��fjU{.clY` t•.r, PGS 17 $80.00 Mary Louise Garcia Submitter: SIMPLIFILE P-TIA -03 11 NON - EXCLUSIVE UTILITY, DRAINAGE, AND WALL EASEMENT AGREEMENT IN SETTLEMENT OF CONDEMNATION STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TARRANT § Effective as of February 28, 2013 (the "Effective Date ") that Gerald C. Graham and Barbara Jo Graham, whose mailing address is P.O. Box 1512, Grapevine, TX 76099, hereinafter called "Grantor," for and in consideration of Ten and No /100 Dollars ($10.00) and other good and valuable consideration paid by The City of Southlake, Texas, a municipal corporation, 1400 Main Street, Southlake Texas, 76092, hereinafter referred to as "Grantee," in settlement of a pending condemnation matter filed by Grantee and pursuant to this Non- Exclusive Utility, Drainage, and Wall Easement Agreement In Settlement Of Condemnation (the "Permanent Easement Agreement ") has granted, and by these presents does grant unto said Grantee a non - exclusive utility, wall and drainage easement under and across a strip of land depicted as "Permanent Easement Property" on Exhibit A and with a legal description of the Permanent Easement Property attached to this Permanent Easement Agreement as Exhibit B (the "Permanent Easement Property ") for (collectively the "Facilities"): (i) below - ground water, sanitary sewer, and water drainage lines and other below - ground city owned utilities; and (ii) a retaining wall, and drain inlets in connection with, and as is necessary for, the Kimball Avenue road expansion project (the "Project ") in connection with which the parties are entering into this Permanent Easement Agreement, and, for all Facilities, only pursuant to the terms and conditions set forth below: Together with the right of ingress and egress along and upon the Permanent Easement Property for the purpose of and with the right to construct, reconstruct, maintain, and make connections to the Facilities. Grantor reserves the right to use the Permanent Easement Property for all purposes that are not inconsistent with the specific rights granted to Grantee under this Non - Exclusive Utility, Drainage, and Wall Easement Agreement In Settlement Of Condemnation (the "Permanent Easement Agreement "). Without limitation, Grantor reserves the right to lay out, dedicate, construct, maintain, cross, operate, repair, remove, replace, reconstruct, and use that part of the surface of the Permanent Easement Property (to the extent not used by Grantee for above- ground Facilities) for driveways, parking, roads, streets, alleys, pavement, curbs, bridges, underground telephone cables and conduits, and gas, water and sewer pipe lines (collectively the Allowable Improvements), provided, however, the Allowable Improvements do not damage the Facilities; Grantee agrees to and shall construct, maintain, operate, repair, remove, replace, and reconstruct the below - ground Facilities at a least the depth shown on the plans for the currently planned improvements for the Kimball Road Project, and to cooperate with Grantors, Grantors' agents, and other utility providers to facilitate the installation of any other above - ground or below - ground improvements, which cooperation will not unreasonably be withheld. Grantor shall not use the Permanent Easement Property for landscaping, signage, or lighting without Grantee's approval, which approval will not be unreasonably withheld, provided, however, Grantee agrees to maintain the Permanent Easement Property in a good condition with 1 28028.6 (ZCz \l - £ 3 14 NON - EXCLUSIVE UTILITY, DRAINAGE, AND WALL EASEMENT AGREEMENT IN SETTLEMENT OF CONDEMNATION STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TARRANT § Effective as of February 28, 2013 (the "Effective Date ") that Gerald C. Graham and Barbara Jo Graham, whose mailing address is P.O. Box 1512, Grapevine, TX 76099, hereinafter called "Grantor," for and in consideration of Ten and No /100 Dollars ($10.00) and other good and valuable consideration paid by The City of Southlake, Texas, a municipal corporation, 1400 Main Street, Southlake Texas, 76092, hereinafter referred to as "Grantee," in settlement of a pending condemnation matter filed by Grantee and pursuant to this Non - Exclusive Utility, Drainage, and Wall Easement Agreement In Settlement Of Condemnation (the "Permanent Easement Agreement ") has granted, and by these presents does grant unto said Grantee a non - exclusive utility, wall and drainage easement under and across a strip of land depicted as "Permanent Easement Property" on Exhibit A and with a legal description of the Permanent Easement Property attached to this Permanent Easement Agreement as Exhibit B (the "Permanent Easement Property") for (collectively the "Facilities "): (i) below - ground water, sanitary sewer, and water drainage lines and other below - ground city owned utilities; and (ii) a retaining wall, and drain inlets in connection with, and as is necessary for, the Kimball Avenue road expansion project (the "Project ") in connection with which the parties are entering into this Permanent Easement Agreement, and, for all Facilities, only pursuant to the terms and conditions set forth below: Together with the right of ingress and egress along and upon the Permanent Easement Property for the purpose of and with the right to construct, reconstruct, maintain, and make connections to the Facilities. Grantor reserves the right to use the Permanent Easement Property for all purposes that are not inconsistent with the specific rights granted to Grantee under this Non - Exclusive Utility, Drainage, and Wall Easement Agreement In Settlement Of Condemnation (the "Permanent Easement Agreement "). Without limitation, Grantor reserves the right to lay out, dedicate, construct, maintain, cross, operate, repair, remove, replace, reconstruct, and use that part of the surface of the Permanent Easement Property (to the extent not used by Grantee for above - ground Facilities) for driveways, parking, roads, streets, alleys, pavement, curbs, bridges, underground telephone cables and conduits, and gas, water and sewer pipe lines (collectively the Allowable Improvements), provided, however, the Allowable Improvements do not damage the Facilities; Grantee agrees to and shall construct, maintain, operate, repair, remove, replace, and reconstruct the below - ground Facilities at a least the depth shown on the plans for the currently planned improvements for the Kimball Road Project, and to cooperate with Grantors, Grantors' agents, and other utility providers to facilitate the installation of any other above - ground or below - ground improvements, which cooperation will not unreasonably be withheld. Grantor shall not use the Permanent Easement Property for landscaping, signage, or lighting without Grantee's approval, which approval will not be unreasonably withheld, provided, however, Grantee agrees to maintain the Permanent Easement Property in a good condition with 1 t i CIS 10Cerlient f h J r �{ " T. !1 ; x 28028.6 Date record =' ), %to Document Nnt,:::114,1173,105Q) grass or other plantings consistent with landscaping requirements under the City of Southlake ordinances and provided that Grantor shall have the right to plant flower and shrubs (but no trees) on the Permanent Easement Property. Notwithstanding anything else in this Permanent Easement Agreement, Grantor shall have the right to pave (with concrete, asphalt, or other material), maintain, reconstruct, and repair the Permanent Easement Property (to the extent not used by Grantee for above - ground Facilities), and shall have the right to drive over and park on, and allow others to drive over and park on, the Permanent Easement Property (to the extent not used by Grantee for above - ground Facilities), and Grantee agrees to and shall install, construct, maintain, operate, repair, remove, replace, and reconstruct all underground Facilities at a sufficient depth and with sufficient support to permit these uses of the Permanent Easement Area. In the event Grantee's use of the Permanent Easement Area causes any damages to the Allowed Improvement, Grantee agrees to restore within a reasonable time, at Grantee's soles cost, the Allowed Improvements to their pre - damage condition. As a material part of the consideration for this Permanent Easement Agreement, Grantee agrees that the use of the Permanent Easement Property by Grantee and by Grantee's successors and permitted assigns shall be restricted as follows: the Permanent Easement Property shall only be used for the Facilities. Grantors and Grantee agree that this restriction shall be a covenant that runs with the land. Grantee may not lease or sublease, or grant any property or possession rights of any kind, to or within the Permanent Easement Property without the prior written consent of Grantor, which consent may be withheld for any reason whatsoever. Grantor hereby consents to Grantee's agents and contractors performing work for Grantee on the Permanent Easement Property pursuant to the terms of this Easement Agreement. Grantee further may not assign or sell this Permanent Easement Agreement or any rights related to the Permanent Easement Property without the prior written consent of Grantor, which consent may be withheld for any reason whatsoever. Any attempted sale or assignment without Grantor' s prior written consent shall be void and of no force and effect. Further, any sale or assignment shall not relieve Grantee from any liability hereunder, which liability arose, in whole or in part, during the term of this Permanent Easement Agreement This Permanent Easement Agreement is made by Grantor and accepted by Grantee subject to the following additional exceptions, reservations, restrictions, conditions and provisions: 1. The grant of rights under this Permanent Easement Agreement is subject to: a) any and all of the following held or claimed by a governmental entity, whether of record or not: (i) validly existing prescriptive easements; (ii) visible and apparent rights of way; and (iii) visible and apparent prescriptive rights; b) all presently recorded easements, restrictions, reservations, covenants, conditions, oil and gas leases, mineral interests, and water interests outstanding in persons other than Grantor, and other instruments; 2 28028.6 c) validly existing utility easements created by recorded dedication deed or plat; d) matters described on Exhibit C; e) any law, ordinance, or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting, or relating to the Permanent Easement Property, Grantor's other property, or any part of any of the foregoing; f) validly existing rights of adjoining owners in any walls and fences situated on a common boundary; g) any discrepancies, conflicts, or shortages in area or boundary lines; and h) any encroachments or overlapping of improvements. 2. The grant of rights under this Permanent Easement Agreement is subject to all visible encumbrances on, in, or affecting the Permanent Easement Property, Grantor's other property, or any part of any of the foregoing. 3. Grantee shall be entitled to use the Permanent Easement Property solely for the purposes expressly set forth in this Permanent Easement Agreement and for no other purpose. Until a new driveway is constructed across the Permanent Easement Property, Grantee shall not close or impede access to Grantor's property over and through the existing driveway that crosses the Permanent Easement Property, provided, however, Grantee may temporarily close Grantor's existing driveway if: i) it is necessary and unavoidable for utility relocation and other construction activities in connection with the Project; and ii) Grantee provides Grantor with an alternative, temporary access drive to Grantor's property that is reasonably satisfactory to Grantor. Grantor will not store, or allow any other person or entity to store, any gasoline, diesel or other fuel, oil, or any other dangerous, hazardous or toxic materials or compounds on the Permanent Easement Property. 4. It shall be Grantee's sole responsibility to ensure that the Facilities are installed so that they will not interfere with or affect existing utilities, improvements, structures, and other encumbrance (with the exception of the improvements Grantee is removing or filling in pursuant to the terms of the Compromise Settlement Agreement between Grantor and Grantee), that the Permanent Easement Property is adequate for Grantee's intended and actual use, and that Grantee's use of the Permanent Easement Property complies with all state, federal, and local requirements for the excavation, construction, reconstruction, installation, operation, repair, maintenance, replacement, alteration and /or removal of Grantee's Facilities. 5. Grantee hereby agrees to obtain, and require its contractors, subcontractors, agents and employees to obtain, all required permits and governmental approvals for all activity on or affecting the Permanent Easement Property so as to meet all regulatory requirements and shall complete all work in accordance with City of Southlake, Texas specifications, requirements, and 3 28028.6 contracts. Grantee shall construct, bury, maintain, operate, repair, remove, replace, and reconstruct the Facilities in accordance with City of Southlake, Texas specifications, requirements, and contracts, and in accordance with all applicable federal, state and local laws, statutes, orders, ordinances, rules, regulations, standards, plans, policies and decrees. Grantee shall, in all activities undertaken pursuant to this Permanent Easement Agreement, comply and require its contractors, agents and employees to comply with all federal, state and local laws, statutes, orders, ordinances, rules, regulations, standards, plans, policies and decrees. 6. Grantee will be solely responsible for the safety of all its employees, contractors, subcontractors, consultants, invitees, agents and other persons who enter onto the Permanent Easement Property at the direction or request of Grantee. Further, Grantee shall obtain, and Grantee shall require any contractor, subcontractor, consultant or other agent entering the Permanent Easement Property to obtain adequate insurance covering personal injury, death, and property damage from his /its activities on the Permanent Easement Property, to name Grantor as an additional insured under such policies, and to provide Grantor with a waiver of subrogation on any workers' compensation insurance policy; Grantee will provide certificates of insurance to Grantor evidencing same upon Grantor's request. Such insurance will be the primary insurance coverage for any claims and Grantee's insurance, if any, shall be considered secondary insurance. To the extent Grantee's contract with any contractor, subcontractor, consultant or other agent that will work on or in connection with the Permanent Easement Property contains a release, indemnity and /or hold harmless agreement, Grantee will require that such release, indemnity and /or hold harmless agreement extends to and covers Grantor. 7. Upon completion of any construction, maintenance, repair, removal, replacement, reconstruction or other work on or in the Permanent Easement Property, Grantee shall promptly restore that part of the surface of the Permanent Easement Property that is not used for above - ground Facilities to a landscaped condition consistent with the Kimball Road project. If any other portion of Grantor's property outside the Permanent Easement Property is damaged as a result of Grantee's activities, Grantee will promptly repair and restore such damaged area to its pre- damage condition. Grantee agrees to provide Grantor with copies of all as -built construction drawings for the Facilities no later than 60 days after Grantee completes construction and any later reconstruction of the Facilities. 8. It is expressly understood and agreed that this Permanent Easement Agreement does not constitute a conveyance in fee of any part of the Permanent Easement Property or a conveyance of any interest in the oil, gas (including casinghead gas and all gaseous substances), hydrocarbons, other minerals, water, sulphur, or other materials in, on, and/or under the Permanent Easement Property, which rights are expressly retained by Grantor, but only grants the non - exclusive easement rights specifically provided in this Permanent Easement Agreement; if the Permanent Easement Property is subject to existing production or an existing lease, this reservation includes the production, the lease, and all benefits from it provided, however, that neither Grantor nor Grantor's agents or assigns shall explore for, mine or drill for or otherwise produce the water, oil, gas (including casinghead gas and all gaseous substances), hydrocarbons, or any other minerals reserved herein, from or on the surface of the Permanent Easement Property, but Grantor shall have the right 4 28028.6 to produce the water, oil, gas, hydrocarbons, and other minerals reserved herein only by directional drilling or other indirect means at a depth of not less than two hundred feet (200') below the surface in a manner which does not enter upon, or interfere with Grantee's rights under this Permanent Easement Agreement. 9. Grantee shall not permit to be placed against the Permanent Easement Property, Grantor's other property, or any part of either, any design professionals', mechanics', materialmen's contractors' or subcontractors' liens with regard to Grantee's actions and activities upon or affecting the Permanent Easement Property. GRANTEE AGREES TO HOLD THE GRANTOR HARMLESS FOR ANY LOSS ARISING FROM ANY SUCH LIENS WHICH MIGHT BE FILED AGAINST GRANTOR'S PROPERTY, INCLUDING WITHOUT LIMITATION THE PERMANENT EASEMENT PROPERTY. THE INDEMNITY AND OTHER RIGHTS AFFORDED BY THIS SECTION SHALL SURVIVE THE TERMINATION AND EXPIRATION OF THIS PERMANENT EASEMENT AGREEMENT. 10. The rights granted under this Permanent Easement Agreement are granted until the Facilities or use of the Permanent Easement Property shall be Abandoned, and in that event such rights shall cease and all rights granted under this Permanent Easement Agreement shall terminate and revert to Grantor or Grantor's heirs, successors, assigns and/or legal representatives. "Abandon" or "Abandonment" as used herein, is defined as the non -use of the Facilities or the Permanent Easement Property for the purpose herein granted, for a continuous period of five years. 11. No termination or expiration of the Permanent Easement Agreement shall release Grantee from any liability or obligation under this Permanent Easement Agreement. 12. In the event of a dispute between the parties with respect to the terms or conditions of, or the rights or obligations under, this Permanent Easement Agreement, the prevailing party shall be entitled to collect from the other party its reasonable attorneys' fees. 13. If a court finds any provision of this Permanent Easement Agreement to be invalid or unenforceable as to any person or circumstance, such finding shall not render the provision invalid or unenforceable as to any other persons or circumstances. To the extent feasible, any provision found to be invalid or unenforceable shall be deemed to be modified to be valid and enforceable; however, if a material provision cannot be so modified, then all rights herein granted shall terminate and the Permanent Easement Property and Facilities shall automatically revert to Grantor or Grantor's heirs, successors, assigns and /or legal representatives. 14. This Permanent Easement Agreement is not valid or binding on any party unless executed by all of the parties listed below. This Permanent Easement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 15. The provisions of this Permanent Easement Agreement shall extend to and be binding upon Grantee and Grantor and their permitted successors and assigns, if any. 5 28028.6 15. Grantor agrees and represents that: (i) this Permanent Easement Agreement is binding on Grantor and enforceable as an agreement in settlement of condemnation under Texas A &M University- Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002) and City of Carrollton v. Singer, 232 S.W.3d 790 (Tex. App. - -Fort Worth 2007, pet. denied) as clarified by any subsequent decisions of the Texas Supreme Court or the Fort Worth Court of Appeals. In the event of a suit by Grantor against Grantee for breach of this Permanent Easement Agreement, City will not assert immunity from such suit, pursuant to the law as set out in the cases cited above. 16. GRANTEE IS TAKING THE PERMANENT EASEMENT PROPERTY PURSUANT TO AN AGREEMENT BETWEEN THE PARTIES IN SETTLEMENT OF CONDEMNATION. THE CONSIDERATION WAS BARGAINED ON THE BASIS OF AN "AS IS, WHERE IS" TRANSACTION AND REFLECTS THE AGREEMENT OF THE PARTIES THAT THERE ARE NO REPRESENTATIONS OR EXPRESS OR IMPLIED WARRANTIES EXCEPT AS EXPRESSLY PROVIDED HEREIN. GRANTEE HAS NOT RELIED ON ANY INFORMATION PROVIDED BY GRANTOR OR ANY PERSON OR ENTITY ACTING ON GRANTOR'S BEHALF OR FOR WHOM GRANTOR HAS RESPONSIBILITY OTHER THAN GRANTEE'S INSPECTION. TO HAVE AND TO HOLD unto Grantee, without warranty of title, either expressed or implied, for the term hereinafter set forth, and subject to the terms, conditions, limitation, reservations, and exceptions contained in this Permanent Easement Agreement, until the Facilities or use of the Permanent Easement Property shall be Abandoned as provided in this Permanent Easement Agreement, and in that event said Permanent Easement Agreement shall cease, all rights herein granted shall terminate, and all rights to use the Permanent Easement Property shall automatically revert to Grantor or Grantor's heirs, successors, assigns and /or legal representatives. REMAINDER OF PAGE INTENTIONALLY BLANK. 6 28028.6 EXECUTED to be effective as of February 28, 2013. GRANTOR: GRANTEE: GERALD AND BARBARA GRAHAM CITY OF SOUTHLAKE, TEXAS fee By: : / 41-1 4 Ge ld Graham John Terre 1, Ma sr Bar . ara Grah. 1380 North Kimball Avenue 1400 Main Street Southlake, Texas 76092 Southlake, Texas 76092 TH Attest: coO 1 "' -. e ®• % r tu Alisha Richardson, City Secr't *� ;,,r REMAINDER OF PAGE INTENTIONALLY BLANK. 7 28028.6 ACKNOWLEDGMENTS STATE OF TEXAS § § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared GERALD C. GRAHAM, known to me (or proved to me on the oath of Me- or through [description of identity card or other document]) to be the person whose name is subscribed to the foregoing instrument and acknowledged • e that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFIC r 0 7 0ay of November, 2012. s Y LARRY TOWNSE:;ND �� Nic: ; v Pubiic Nota ' u Mil n an a or Q 4.o p T tate f Texas �� My Comm. Exp. 03/14 /2013 My Commission Expires: Typed or Printed Name of Notary 8 28028.6 STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this da ersopally appeared BARBARA GRAHAM, known to me (or proved to me on the oath of Meor through [description of identity card or other do • ; t]) to be the person whose name is subscribed to the foregoing instrument and acknowledge • to me t ' at he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFIC : Z 8 da, of November, 2012. Not. 'ubl and fo r e State t Texas My Commission Expires: Typed or Printed Name of Notary „ .k �, TC3lNNF;C3 *. * 9Uo; ; y Public STATE ry,_ TEXAS � ph my Comm. Exp, C'/14 /2013 9 28028.6 STATE OF TEXAS § § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared JOHN TERRELL, known to me (or proved to me on the oath of or through [description of identity card or other document]) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 44 - N�:ceM T� day of Fier, 2012. a'ri � * � ¢ � � * � 4 ,� *,QaQ,d *� *Qtr * *� Notary Public in and for y F F " T. R I G G S The State of Texas ;r, r,. Notary Public ' ',, (�F TEX M y bmi EIx�cymmissiun � ,� Expires 0 / 2013 T yped or Printe of Notary n ��, � ��a { ��� y aavaoouaoaaaooaoaa aova 10 28028 Exhibit "A" Survey of Permanent Easement Property 11 28028.6 BURTON H. PATTERSON AND, V.R 204243712, L PATTERSON I 1 — — CC No. 204243712, D.R.T.C.T. Z �JZ i PANHANDLE DRIVE e D e 1 N 1 _ r S 89 °45'37 "E 1/2" IRS 1 0.00' t5' 10' , PERMANENT UTILITY, 1 DRAINAGE AND WALL EASEMENT 1 0.048ACRE / 2,090 SQ.FT. M O O , 0 Lal La M I 0 N L 1 GERALD C. GRAHAM AND WIFE, > — — — — BARBARA GRAHAM 31 W 1 VOL 10817, PG. 2378 D.R.T.C.T. F1 M M 1 0 o vs m 1 � wit o TEMPORARY CONSTRUCTION EASEMENT C o 1 Y 0.127 ACRE / 5.520 SOFT. ,No j 1 00 \ -� N I N. N 00°49'31 "W 0 1 \ 30.00' P ROPOSET;I NEW N. I � RIGHT —OF WAY � &11t LINE' Sp — — — — ` — 15' 1 "PK" NAIL FOUND N 89 °451 "W SOUTHEAST CORNER OF .` N 89 °45'37 "W 49.92 GRAHAM TRACT `43 10.00' G� ,,,,, POINT OF BEGINNING 1 /2"IRON ROD SET w RICHARD HOLUDAY AND WIFE, 7 MARY ANN HOWDAY .21,..... VOL 14325, PG. 524 — — — D.R.T.C.T. I N \ j TUMBLEWEED TRAIL PROPERTY CORNER NOTE SCALE 1 "= 50' ALL PROPERTY CORNERS SET ARE 1/2" IRON RODS (1/2 "IRS) WITH CAP MARKED "BRRTAIN & CRAWFORD' CITY OF SOUTHLAKE 1400 MAIN STREET, SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO DOVE ROAD EXHIBIT "B" �,+�' BRrrr� & CR WFORD 10' PERMANENT UTILITY, ,v ' , LAND SURVEYING & DRAINAGE AND WALL EASEMENT �/ '1 ,M ,ES C nnYUN' TOPOGRAPHIC NAPPING . t ■ c _,.1 Q74 , . (1117) �-°ei I - r:TRO am 433-5113 0.048 ACRE OF LAND FAX No. (317) 120 -1347 LOCATED IN THE ' • . • P.O. ,aT >:I I FRANCIS THROOP SURVEY JULY 14, 2010 EXHIBIT °WL ABSTRACT No. 1511 REVISED: MAY 2, 2012 v wM x_ SOUTHLA TARRANT COUNTY, TEXAS REVISED:OCTOBER 16, 2012 1 Exhibit "B" Legal Description of Permanent Easement Property 12 28028.6 EXHIBIT "A" LEGAL DESCRIPTION PERMANENT UTILITY, DRAINAGE AND WALL EASEMENT NORTH KIMBALL AVENUE, STATE HIGHWAY 114 TO DOVE ROAD PARCEL 17 BEING 0.048 acre of land located in the Francis Throop Survey, Abstract No. 1511, Southlake, Tarrant County, Texas, and being a portion of a tract of land conveyed to Gerald C. Graham and wife, Barbara Graham by the deed recorded in Volume 10817, Page 2378, of the Deed Records of Tarrant County, Texas. Said 0.048 acre of land being more particularly described by metes and bounds as follows: BEGINNING at a 1 /z" iron rod marked "Brittain & Crawford ", set in the South boundary line of said Graham Tract, Tying N 89° 45' 37" W 49.92 feet, from a "PK" nail found marking the Southeast corner of said Graham Tract, and said POINT OF BEGINNING also Tying in the new West right -of -way line of North Kimball Avenue; THENCE N 89° 45' 37" W 10.00 feet, along the South boundary line of aforesaid Graham Tract, to a point; THENCE N 00° 49' 31" W 209.01 feet, to a point in the North boundary line of said Graham Tract; THENCE S 89° 45' 37" E 10.00 feet, along the North boundary line of said Graham Tract, to a %" iron rod marked "Brittain & Crawford ", set; THENCE S 00° 49' 31" E 209.01 feet, along the new West right -of -way line of said North Kimball Avenue, to the POINT OF BEGINNING containing 0.048 acre (2,090 square feet) of land. EXHIBIT G:doc\kimball- Iegals\ES -17 Exhibit "C" Exceptions To Title From Title Commitment 13 28028.6 SCHEDULE B EXCEPTIONS FROM COVERAGE GF Number: 11 -03174 In addition to the Exclusions and Conditions and Stipulations, your Policy will not cover Toss, costs, attorney's fees, and expenses resulting from: 1. This Item is hereby deleted. 2. Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements. 3. Homestead or community property or survivorship rights, if any of any spouse of any insured. (Applies to the Owner Policy only.) 4. Any titles or rights asserted by anyone, including, but not limited to, persons, the public, corporations, governments or other entities, a. to tidelands, or lands comprising the shores or beds of navigable or perennial rivers and streams, lakes, bays, gulfs or oceans, or b. to lands beyond the line of the harbor or bulkhead lines as established or changed by any government, or c. to filled -in lands, or artificial islands, or d. to statutory water rights, including riparian rights, or e. to the area extending from the line of mean low tide to the line of vegetation, or the rights of access to that area or easement along and across that area. (Applies to the Owner Policy only.) 5. Standby fees, taxes and assessments by any taxing authority for the year 2013, and subsequent years; and subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership, but not those taxes or assessments for prior years because of an exemption granted to a previous owner of the property under Section 11.13, Texas Tax Code, or because of improvements not assessed for a previous tax year. (If Texas Short Form Residential Mortgagee Policy (T -2R) is issued, that policy will substitute "which become due and payable subsequent to Date of Policy" in lieu of "for the year 2013 and subsequent years. ") 6. The terms and conditions of the documents creating your interest in the land. 7. Materials furnished or labor performed in connection with planned construction before signing and delivering the lien document described in Schedule A, if the land is part of the homestead of the owner. (Applies to the Mortgagee Title Policy Binder on Interim Construction Loan only, and may be deleted if satisfactory evidence is furnished to us before a binder is issued.) 8. Liens and leases that affect the title to the land, but that are subordinate to the lien of the insured mortgage. (Applies to Mortgagee Policy (T -2) only.) 9. The Exceptions from Coverage and Express Insurance in Schedule B of the Texas Short Form Residential Mortgagee Policy of Title Insurance (T -2R). (Applies to Texas Short Form Residential Mortgagee Policy of Title Insurance (T -2R) only.) Separate exceptions 1 through 8 of this Schedule B do not apply to the Texas Short Form Residential Mortgagee Policy of Title Insurance (T -2R). 10. The following matters and all terms of the documents creating or offering evidence of the matters (We must insert matters or delete this exception.): FORM T -7: Commitment for Title Insurance (Sched EXHIBIT (11- 03174.PFD/11- 03174/57) 0060 RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS a SCHEDULE B (Continued) GF Number: 11 -03174 a. Easement for electric lines awarded to BARBARA JO SERAFINI by Judgment entered on July 27, 1989 in Cause No. 67- 96049 -86, styled TEXAS POWER & LIGHT COMPANY vs. BARBARA JO SERAFINI, a certified copy of which is recorded in Volume 9665, Page 377, Deed Records, Tarrant County, Texas. b. Terms, conditions, and stipulations of Oil, Gas and Mineral lease, a Memorandum of which is dated effective September 11, 2008, filed for record under Clerk's File No. D209119199, Deed Records of Tarrant County, Texas. Title to said Lease has not been checked subsequent to the date of recording of the said Memorandum. c. Terms, conditions and stipulations contained in Non - Exclusive Utility, Drainage and Wall Easement Agreement in Settlement Condemnation dated effective as of February 28, 2013, by and between Gerald C. Graham and Barbara Jo Graham and the City of Southlake, Texas filed for record under Clerk's File No. , Deed Records of Tarrant County, Texas. (11- 03174.PFD/11- 03174/57) FORM T -7: Commitment for Title Insurance (Schedule B) RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS RATTI ► I March 29, 2013 The City of Southlake, a Texas municipal corporation c/o City Manager 1400 Main Street Southlake, TX 76092 Re: RTC GF #: 11 -03174 Property Address: 1380 N Kimball Ave Southlake, TX 76092 Dear The City of Southlake, a Texas municipal corporation: In connection with the above referenced transaction, we are pleased to enclose the title policy and original instruments that have been filed of record. We continually strive to deliver consistent, high quality customer service and to make your experience as comfortable and easy as possible. To that end, we have created a special file concerning this transaction. Should the property be placed for sale or mortgaged in the future, all corresponding history will be easily accessible and will expedite closing of the transaction at Rattikin Title. It has been a great pleasure to be of service to you in this matter. If we can be of further assistance in this, or any future transaction, please contact us. Sincerely, Megan Newburn Escrow Officer mnewburn @rattikintitle.com Southlake Office • 2615 E. Southlake Blvd., Suite 100 • Southlake, Texas 76092 • Phone 817.329.9975 • Fax 817.481.5058 ww.Rattikintitle.com OWNER'S POLICY OF TITLE INSURANCE (T-1) Issued by ALLIANT NATIONAL TITLE INSURANCE COMPANY POLICY NO. Any notice of claim and any other notice or statement in writing required to be given to the Company T1-724458 under this Policy must be given to the Company at the address shown in Section 18 of the Conditions COVERED RISKS SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS, ALLIANT NATIONAL TITLE INSURANCE COMPANY, a Colorado corporation (the "Company ") insures, as of Date of Policy and, to the extent stated in Covered Risks 9 and 10, after Date of Policy, against loss or damage, not exceeding the Amount of Insurance, sustained or incurred by the Insured by reason of: 1. Title being vested other than as stated in Schedule A. 2. Any defect in or lien or encumbrance on the Title. This Covered Risk includes but is not limited to insurance against loss from: (a) A defect in the Title caused by: (i) forgery, fraud, undue influence, duress, incompetency, incapacity or impersonation; (ii) failure of any person or Entity to have authorized a transfer or conveyance; (iii) a document affecting Title not properly created, executed, witnessed, sealed, acknowledged, notarized or delivered; (iv) failure to perform those acts necessary to create a document by electronic means authorized by law; (v) a document executed under a falsified, expired or otherwise invalid power of attorney; (vi) a document not properly filed, recorded or indexed in the Public Records including failure to perform those acts by electronic means authorized by law; or (vii) a defective judicial or administrative proceeding. (b) The lien of real estate taxes or assessments imposed on the Title by a governmental authority due or payable, but unpaid. (c) Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete and survey of the Land. The term "encroachment" includes encroachments of existing improvements located on the Land onto adjoining land, and (d) Any statutory or constitutional mechanic's, contractor's, or materialman's lien for labor or materials having its inception on or before Date of Policy. 3. Lack of good and indefeasible Title. 4. No right of access to and from the Land. 5. The violation or enforcement of any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting or relating to: (a) the occupancy, use or enjoyment of the Land; (b) the character, dimensions or location of any improvement erected on the Land; (c) subdivision of land; or (d) environmental protection if a notice, describing any part of the Land, is recorded in the Public Records setting forth the violation or intention to enforce, but only to the extent of the violation or enforcement referred to in that notice. 6. An enforcement action based on the exercise of a governmental police power not covered by Covered Risk 5 if a notice of the enforcement action, describing any part of the Land, is recorded in the Public Records, but only to the extent of the enforcement referred to in that notice. 7. The exercise of the rights of eminent domain if a notice of the exercise, describing any part of the Land, is recorded in the Public Records. 8. Any taking by a governmental body that has occurred and is binding on the rights of a purchaser for value without Knowledge. 9. Title being vested other than as stated in Schedule A or being defective: (a) as a result of the avoidance in whole or in part, or from a court order providing an alternative remedy, of a transfer of all or any part of the title to or any interest in the Land occurring prior to the transaction vesting Title as shown in Schedule A because that prior transfer constituted a fraudulent or preferential transfer under federal bankruptcy, state insolvency or similar creditors' rights laws; or (b) because the instrument of transfer vesting Title as shown in Schedule A constitutes a preferential transfer under federal bankruptcy, state insolvency or similar creditors' rights laws by reason of the failure of its recording in the Public Records: (i) to be timely, or (ii) to impart notice of its existence to a purchaser for value or a judgment or lien creditor. 10. Any defect in or lien or encumbrance on the Title or other matter included in Covered Risks 1 through 9 that has been created or attached or has been filed or recorded in the Public Records subsequent to Date of Policy and prior to the recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A. The Company will also pay the costs, attorneys' fees and expenses incurred in defense of any matter insured against by this Policy, but only to the extent provided in the Conditions ALLIANT NATIONAL TITLE INSURANCE COMPANY Rattikin Title Company 201 Main Street �1?�E_��s By: Suite 800 G �, o P• g p0 � 9 /� 4 + President Fort Worth, TX 76102 Countersigned: Z; SEAL ' I^ CO LORA - e.'a� ft leA >b Attest: By. 'L = .4 ( Secretary Authorized Officer or Agent Form ANTTX - Owner's Policy of Title Insurance IMPORTANT NOTICE AVISO IMPORTANTE To obtain information or make a Para obtener informacion o para someter una complaint: queja: You may call Alliant National Title Ins. Co.'s toll Usted puede Ilamar al numero de telefono gratis free telephone number for information or to make de Alliant National Title Ins. Co. para informacion a complaint at: o para someter una queja al: (877)788 - 9800 (877)788 - 9800 You may also write to Alliant National Title Ins. Usted tambien puede escriber a Alliant National Co. at: Title Ins. Co.: 2101 Ken Pratt Blvd., Suite 102 2101 Ken Pratt Blvd., Suite 102 Longmont, CO. 80501 Longmont, CO. 80501 You may contact the Texas Department of Puede comunicarse con el Departamento de Insurance to obtain information on Seguros de Texas para obtener informacion companies, coverages, rights, or complaints acerca de companias, coberturas, dereturas, at: derechos o quejas al: 1- 800 - 252 -3439 1- 800 - 252 -3439 You may write the Texas Department of Puede escribir al Departamento de Seguros de Insurance: Texas: P.O. Box 149104 P.O. Box 149104 Austin, TX 78714 -9104 Austin, TX 78714 -9104 Fax: (512) 475 -1771 Fax: (512) 475 -1771 Web: http: / /www.tdi.state.tx.us Web: http: / /www.tdi.state.tx.us E -mail: ConsumerProtection @tdi.state.tx.us E -mail: ConsumerProtection @ tdi.state.tx.us PREMIUM OR CLAIM DISPUTES: DISPUTAS SOBRE PRIMAS 0 RECLAMOS: Should you have a dispute concerning your i tiene una disputa concerniente a su prima o premium or about a claim, you should a un reclamo, debe comunicarse con el contact Alliant National Title Ins. Co. first. If Alliant National Title Ins. Co. primero. Si no the dispute is not resolved, you may then se resuelve la disputa, puede entonces contact the Texas Department of Insurance. comunicarse con el dapartamento (TDI). ATTACH THIS NOTICE TO YOUR POLICY: UNA ESTE AVISO A SU POLIZA: This notice is for information only and does Este aviso es solo para proposito de not become a part or condition of the informacion y no se convierte en parte o attached document. condicion del documento adjunto ALLIANT NATIONAL TITLE INS. CO. OWNER'S POLICY OF TITLE INSURANCE T -1 SCHEDULE A Name and Address of Title Insurance Company: Alliant National Title Ins. Co. 1831 Lefthand Circle; Suite G Longmont, CO. 80501 File Number: 11 -03174 Policy Number: 724458 Address for Reference only: 1380 N Kimball Ave Southlake, TX 76092 Amount of Insurance: $ 225,000.00 Date of Policy: December 6, 2012 Premium: $1,511.00 1. Name of Insured: The City of Southlake, a Texas municipal corporation 2. The estate or interest in the land which is covered by this policy is: TRACT 1: Fee Simple estate, subject to, and the Company does not insure title to, and excepts from the description of the Land, coal, lignite, oil, gas and other minerals in, under and that may be produced from the Land, together with all rights, privileges, and immunities related thereto. TRACT 2: Non - Exclusive Easement Estate for permanent utility, drainage and wall as created by that certain Non - Exclusive Utility, Drainage and Wall Easement Agreement in Settlement Condemnation dated effective as of February 28, 2013, by and between Gerald C. Graham and Barbara Jo Graham and the City of Southlake, Texas filed for record under Clerk's File No. D212298501, Deed Records of Tarrant County, Texas. 3. Title to the estate or interest in the land is insured as vested in: The City of Southlake, a Texas municipal corporation 4. The land referred to in this policy is described as follows: TRACT 1: A 0.241 acre tract of land out of the Francis Throop Survey, Abstract No. 1511, Southlake, Tarrant County, Texas, and being more particularly described by metes and bounds on Exhibit "A" attached hereto for all purposes. TRACT 2: A 0.048 acre tract of land out of the Francis Throop Survey, Abstract No. 1511, Southlake, Tarrant County, Texas, and being more particularly described by metes and bounds on Exhibit "B" attached hereto for all purposes FORM T -1: Owner's Policy of Title Insurance Schedule A (11- 03174.PFD/11- 03174/73) Rev. 05 -01 -08 RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS EXHIBIT A TRACT 1 • PERMANENT RIGHT -OF -WAY NORTH KIMBALL AVENUE, STATE HIGHWAY 114 TO DOVE ROAD PARCEL 17 BEING 0.241 acre of land located in the Francis Throop Survey, Abstract No. 1511, Southlake, Tarrant County, Texas, and being a portion of a tract of land conveyed to Gerald C. Graham and wife, Barbara Graham by the deed recorded in Volume 10817, Page 2378, of the Deed Records of Tarrant County, Texas. Said 0.241 acre of land being more particularly described by metes and bounds as follows; BEGINNING at a "PK" nail found at the Southeast corner of said Graham Tract and the Northeast comer of a tract of land conveyed to Richard Holliday and wife, Mary Ann Holliday by the deed recorded in Volume 14325, Page 524 of the Deed Records of Tarrant County, Texas. and said POINT OF BEGINNING also lying in the centerline of North Kimball Avenue; THENCE N 89° 45' 37" W 49.92 feet. along the South boundary line of aforesaid Graham Tract and the North boundary line of said Holliday Tract, to a %" Iron rod marked "Brittain & Crawford ", set in the new West right -of -way line of said North Kimball Avenue; THENCE N 00° 49' 31" W 209.01 feet, along the new West right -of -way line of said North Kimball Avenue, to a '/" iron rod marked "Brittain & Crawford ", set in the North boundary line of said Graham Tract and the South boundary line of a tract of land conveyed to Burton H. Patterson and, Virginia L. Patterson by the deed recorded in County Clerk's File No. 204243712 of the Deed Records of Tarrant County Texas; THENCE S 89° 45' 37" E 50.73 feet, along the North boundary line of said Graham Tract and the South boundary line of said Patterson Tract, to a point at the Northeast comer of said Graham Tract, lying in the • centerline of line of said North Kimball Avenue; THENCE S 00° 36' 17" E 209.00 feet, along the East boundary line of said Graham Tract and the centerline of said North Kimball Avenue, to the POINT OF BEGINNING containing 0.241 acre (10,517 square feet) of land. NOTE: THE COMPANY DOES NOT REPRESENT THAT THE ABOVE ACREAGE OR SQUARE FOOTAGE CALCULATIONS ARE CORRECT. Page 1 EXHIBIT TRACT 2. PERMANENT UTILITY, DRAINAGE AND WALL EASEMENT NORTH KIMBALL AVENUE, STATE HIGHWAY 114 TO DOVE ROAD PARCEL 17 BEING 0.048 acre of land located in the Francis Throop Survey, Abstract No. 1511, Southlake, Tarrant County, Texas, and being a portion of a tract of land conveyed to Gerald C. Graham and wife, Barbara Graham by the deed recorded in Volume 10817, Page 2378, of the Deed Records of Tarrant County, Texas. Said 0,048 acre of land being more particularly described by metes and bounds as follows: BEGINNING at a W iron rod marked "Brittaln & Crawford ", set in the South boundary line of said Graham Tract, lying N 89° 45' 37" W 49.92 feet, from a "PK" nail found marking the Southeast corner of said Graham Tract, and said POINT OF BEGINNING also lying in the new West right -of -way line of North Kimball Avenue; THENCE N 89° 45' 37" W 10.00 feet, along the South boundary line of aforesaid Graham Tract, to a point; THENCE N 00° 49' 31" W 209.01 feet, to a point in the North boundary line of said Graham Tract; THENCE S 89° 45' 37" E 10.00 feet, along the North boundary line of said Graham Tract, to a %z" iron rod narked "Brittaln & Crawford ", set; THENCE S 00° 49' 31" E 209.01 feet, along the new West right -of -way line of said North Kimball Avenue, to the POINT OF BEGINNING containing 0.048 acre (2,090 square feet) of land. • NOTE; THE COMPANY DOES NOT REPRESENT THAT THE ABOVE ACREAGE OR SQUARE FOOTAGE CALCULATIONS ARE CORRECT. Page 1 ALLIANT NATIONAL TITLE INS. CO. SCHEDULE B File No.: 11 -03174 Policy No.: 724458 EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) that arise by reason of the terms and conditions of the leases and easements, if any, shown in Schedule A and the following matters: 1. - - - - - " -- - - -- -- - - recording data data or delete this exccption): This Item is hereby deleted. 2. Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements. 3. Homestead or community property or survivorship rights, if any, of any spouse of any Insured. 4. Any titles or rights asserted by anyone, including but not limited to, persons, the public, corporations, governments or other entities. a. to tidelands, or lands comprising the shores or beds of navigable or perennial rivers and streams, lakes, bays, gulfs or oceans, or b. to lands beyond the line of the harbor or bulkhead lines as established or changed by any government, or c. to filled -in lands, or artificial islands, or d. to statutory water rights, including riparian rights, or e. to the area extending from the line of mean low tide to the line of vegetation, or the right of access to that area or easement along and across that area. 5. Standby fees, taxes and assessments by any taxing authority for the year 2013, and subsequent years; and subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership, but not those taxes or assessments for prior years because of an exemption granted to a previous owner of the property under Section 11.13, Texas Tax Code, or because of improvements not assessed for a previous tax year. 6. The following matters and all terms of the documents creating or offering evidence of the matters (The Company must insert matters or delete this exception.) a. Easement for electric lines awarded to BARBARA JO SERAFINI by Judgment entered on July 27, 1989 in Cause No. 67- 96049 -86, styled TEXAS POWER & LIGHT COMPANY vs. BARBARA JO SERAFINI, a certified copy of which is recorded in Volume 9665, Page 377, Deed Records, Tarrant County, Texas. b. Terms, conditions, and stipulations of Oil, Gas and Mineral lease, a Memorandum of which is dated effective September 11, 2008, filed for record under Clerk's File No. D209119199, Deed Records of Tarrant County, Texas. Title to said Lease has not been checked subsequent to the date of recording of the said Memorandum. FORM T -1: Owner's Policy of Title Insurance Schedule B (11- 03174.PFD/11- 03174/73) Rev. 05 -01 -08 RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS SCHEDULE B (Continued) File No.: 11 -03174 Policy No.: 724458 c. Terms, conditions and stipulations contained in Non - Exclusive Utility, Drainage and Wall Easement Agreement in Settlement Condemnation dated effective as of February 28, 2013, by and between Gerald C. Graham and Barbara Jo Graham and the City of Southlake, Texas filed for record under Clerk's File No. D2122985O1, Deed Records of Tarrant County, Texas. d. Interest in all oil, gas, and other minerals as reserved in deed filed for record under Clerk's File No. D212298500, Deed Records of Tarrant County, Texas. Title to said mineral interest has not been checked subsequent to the date of recording of the referenced instrument. e. Section 14 of the Conditions and Stipulations of this Policy is hereby deleted. f. Temporary Easement in Settlement of Condemnation (Removal of Structure) from Gerald C. Graham and Barbara Jo Graham to The City of Southlake, a Texas municipal corporation, and filed for record with the County Clerk of Tarrant County, Texas, on December 6, 2012, under Clerk's File No. D212298503, Deed Records of Tarrant County, Texas. FORM T -1: Owner's Policy of Title Insurance Schedule B (11- 03174.PFD/11- 03174/77) Rev. 05 -01 -08 RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS ALL1ANT "1'' `AT10NAL T I T L E I N S U R A N (. E C O M P A N Y EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses that arise by reason of: 1. (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting or relating to: (i) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions or location of any improvement erected on the Land; (iii) subdivision of land; or (iv) environmental protection; or the effect of any violation of these laws, ordinances or governmental regulations. This Exclusion 1(a) does not modify or limit the coverage provided under Covered Risk 5. (b) Any governmental police power. This Exclusion 1(b) does not modify or limit the coverage provided under Covered Risk 6. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the Insured Claimant; (b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 9 and 10); or (e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Title. 4. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction vesting the Title as shown in Schedule A, is: (a) a fraudulent conveyance or fraudulent transfer; or (b) a preferential transfer for any reason not stated in Covered Risk 9 of this policy. 5. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A. 6. The refusal of any person to purchase, lease or lend money on the estate or interest covered hereby in the and described in Schedule A because of Unmarketable Title. CONDITIONS 1. DEFINITION OF TERMS (f) "Knowledge" or "Known ": actual knowledge, not The following terms when used in this policy mean: constructive knowledge or notice that may be imputed to an Insured (a) "Amount of Insurance ": the amount stated in Schedule A, by reason of the Public Records or any other records that impart as may be increased or decreased by endorsement to this policy, constructive notice of matters affecting the Title. increased by Section 8(b), or decreased by Sections 10 and 11 of (g) "Land ": the land described in Schedule A, and these Conditions. affixed improvements that by law constitute real property. The (b) "Date of Policy ": The date designated as "Date of Policy" term "Land" does not include any property beyond the lines of the in Schedule A. area described in Schedule A, nor any right, title, interest, estate or (c) "Entity ": A corporation, partnership, trust, limited liability easement in abutting streets, roads, avenues, alleys, lanes, ways or company or other similar legal entity. waterways, but this does not modify or limit the extent that a right of (d) "Insured ": the Insured named in Schedule A. access to and from the Land is insured by this policy. (i) The term "Insured" also includes: (h) "Mortgage ": mortgage, deed of trust, trust deed, (A) successors to the Title of the Insured by operation or other security instrument, including one evidenced by electronic of law as distinguished from purchase, including heirs, devisees, means authorized by law. survivors, personal representatives or next of kin; (i) `Public Records": records established under state (B) successors to an Insured by dissolution, merger, statutes at Date of Policy for the purpose of imparting constructive consolidation, distribution or reorganization; notice of matters relating to real property to purchasers for value (C) successors to an Insured by its conversion to and without Knowledge. With respect to Covered Risk 5(d), "Public another kind of Entity; Records" shall also include environmental protection liens filed in (D) a grantee of an Insured under a deed delivered the records of the clerk of the United States District Court for the without payment of actual valuable consideration conveying the district where the Land is located. Title; (j) "Title ": the estate or interest described in (1) If the stock, shares, memberships, or other Schedule A. equity interests of the grantee are wholly -owned by the named (k) "Unmarketable Title ": Title affected by an alleged Insured, or apparent matter that would permit a prospective purchaser or (2) If the grantee wholly owns the named Insured, lessee of the Title or lender on the Title to be released from the (3) If the grantee is wholly -owned by an affiliated obligation to purchase, lease or lend if there is a contractual condition Entity of the named Insured, provided the affiliated Entity and the requiring the delivery of marketable title. named Insured are both wholly -owned by the same person or Entity, 2. CONTINUATION OF INSURANCE. or • The coverage of this policy shall continue in force as of Date of (4) If the grantee is a trustee or beneficiary of Policy in favor of an Insured, but only so long as the Insured retains a trust created by a written instrument established by the Insured an estate or interest in the Land, or holds an obligation secured named in Schedule A for estate planning purposes. by a purchase money Mortgage given by a purchaser from the (ii) With regard to (A), (B), (C) and (D) reserving, however, all rights Insured, or only so long as the Insured shall have liability by reason and defenses as to any successor that the Company would have of warranties in any transfer or conveyance of the Title. This policy had against any predecessor Insured. shall not continue in force in favor of any purchaser from the Insured (e) "Insured Claimant ": an Insured claiming loss or of either (i) an estate or interest in the Land, or (ii) an obligation damage. secured by a purchase money Mortgage given to the Insured. Form ANTTX -TI Owner's Policy of Title Insurance CONDITIONS (continued) 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED defense as required or permitted by this policy, the Company may CLAIMANT. pursue the litigation to a final determination by a court of competent The Insured shall notify the Company promptly in writing (i) jurisdiction and it expressly reserves the right, in its sole discretion, in case of any litigation as set forth in Section 5 (a) below, or (ii) in to appeal from any adverse judgment or order. case Knowledge shall come to an Insured hereunder of any claim 6. DUTY OF INSURED CLAIMANT TO COOPERATE. of title or interest that is adverse to the Title, as insured, and that (a) In all cases where this policy permits or requires the Company might cause loss or damage for which the Company may be liable to prosecute or provide for the defense of any action or proceeding by virtue of this policy. If the Company is prejudiced by the failure and any appeals, the Insured shall secure to the Company the right of the Insured Claimant to provide prompt notice, the Company's to so prosecute or provide defense in the action or proceeding, liability to the Insured Claimant under the policy shall be reduced to including the right to use, at its option, the name of the Insured for the extent of the prejudice. this purpose. Whenever requested by the Company, the Insured, When, after the Date of the Policy, the Insured notifies the at the Company's expense, shall give the Company all reasonable Company as required herein of a lien, encumbrance, adverse claim aid (i) in securing evidence, obtaining witnesses, prosecuting or or other defect in Title insured by this policy that is not excluded defending the action or proceeding, or effecting settlement, and (ii) or excepted from the coverage of this policy, the Company shall in any other lawful act that in the opinion of the Company may be promptly investigate the charge to determine whether the lien, necessary or desirable to establish the Title or any other matter as encumbrance, adverse claim or defect or other matter is valid and insured. If the Company is prejudiced by the failure of the Insured not barred by law or statute. The Company shall notify the Insured to furnish the required cooperation, the Company's obligations to in writing, within a reasonable time, of its determination as to the the Insured under the policy shall terminate, including any liability validity or invalidity of the Insured's claim or charge under the policy. or obligation to defend, prosecute, or continue any litigation, with If the Company concludes that the lien, encumbrance, adverse claim regard to the matter or matters requiring such cooperation. or defect is not covered by this policy, or was otherwise addressed (b) The Company may reasonably require the Insured in the closing of the transaction in connection with which this policy Claimant to submit to examination under oath by any authorized was issued, the Company shall specifically advise the Insured of representative of the Company and to produce for examination, the reasons for its determination. If the Company concludes that the inspection and copying, at such reasonable times and places lien, encumbrance, adverse claim or defect is valid, the Company as may be designated by the authorized representative of the shall take one of the following actions: (i) institute the necessary Company, all records, in whatever medium maintained, including proceedings to clear the lien, encumbrance, adverse claim or defect books, ledgers, checks, memoranda, correspondence, reports, from the Title as insured; (ii) indemnify the Insured as provided in e- mails, disks, tapes, and videos whether bearing a date before this policy; (iii) upon payment of appropriate premium and charges or after Date of Policy, that reasonably pertain to the loss or therefor, issue to the Insured Claimant or to a subsequent owner, damage. Further, if requested by any authorized representative loan /lender or holder of the estate or interest in the Land insured of the Company, the Insured Claimant shall grant its permission, by this policy, a policy of title insurance without exception for the in writing, for any authorized representative of the Company to lien, encumbrance, adverse claim or defect, said policy to be in an examine, inspect and copy all of these records in the custody amount equal to the current value of the Land or, if a loan /lender or control of a third party that reasonably pertain to the loss or policy, the amount of the loan; (iv) indemnify another title insurance damage. All information designated as confidential by the Insured company in connection with its issuance of a policy(ies) of title Claimant provided to the Company pursuant to this Section shall insurance without exception for the lien, encumbrance, adverse not be disclosed to others unless, in the reasonable judgment of claim or defect; (v) secure a release or other document discharging the Company, it is necessary in the administration of the claim. the lien, encumbrance, adverse claim or defect; or (vi) undertake a Failure of the Insured Claimant to submit for examination under combination of (i) through (v) herein. oath, produce any reasonably requested information or grant 4. PROOF OF LOSS. permission to secure reasonably necessary information from In the event the Company is unable to determine the amount of third parties as required in this subsection, unless prohibited by loss or damage, the Company may, at its option, require as a condition law or governmental regulation, shall terminate any liability of the of payment that the Insured Claimant furnish a signed proof of loss. Company under this policy as to that claim. The proof of loss must describe the defect, lien, encumbrance or 7. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; other matter insured against by this policy that constitutes the basis TERMINATION OF LIABILITY. of loss or damage and shall state, to the extent possible, the basis In case of a claim under this policy, the Company shall have the of calculating the amount of the loss or damage. following additional options: 5. DEFENSE AND PROSECUTION OF ACTIONS. (a) To Pay or Tender Payment of the Amount of Insurance. (a) Upon written request by the Insured, and subject to the To pay or tender payment of the Amount of Insurance under this options contained in Sections 3 and 7 of these Conditions, the policy together with any costs, attorneys' fees and expenses Company, at its own cost and without unreasonable delay, shall incurred by the Insured Claimant that were authorized by the provide for the defense of an Insured in litigation in which any third Company up to the time of payment or tender of payment and party asserts a claim covered by this policy adverse to the Insured. that the Company is obligated to pay. Upon the exercise by the This obligation is limited to only those stated causes of action Company of this option, all liability and obligations of the Company alleging matters insured against by this policy. The Company shall to the Insured under this policy, other than to make the payment have the right to select counsel of its choice (subject to the right required in this subsection, shall terminate, including any liability of the Insured to object for reasonable cause) to represent the or obligation to defend, prosecute, or continue any litigation. Insured as to those stated causes of action. It shall not be liable for (b) To Pay or Otherwise Settle With Parties Other than the and will not pay the fees of any other counsel. The Company will Insured or With the Insured Claimant. (i) to pay or otherwise settle not pay any fees, costs or expenses incurred by the Insured in the with other parties for or in the name of an Insured Claimant any defense of those causes of action that allege matters not insured claim insured against under this policy. In addition, the Company against by this policy. will pay any costs, attorneys' fees and expenses incurred by the (b) The Company shall have the right, in addition to the Insured Claimant that were authorized by the Company up to the options contained in Sections 3 and 7, at its own cost, to institute time of payment and that the Company is obligated to pay; or (ii) and prosecute any action or proceeding or to do any other act that to pay or otherwise settle with the Insured Claimant the loss or in its opinion may be necessary or desirable to establish the Title, damage provided for under this policy, together with any costs, as insured, or to prevent or reduce loss or damage to the Insured. attorneys' fees and expenses incurred by the Insured Claimant The Company may take any appropriate action under the terms that were authorized by the Company up to the time of payment of this policy, whether or not it shall be liable to the Insured. The and that the Company is obligated to pay. Upon the exercise by the exercise of these rights shall not be an admission of liability or Company of either of the options provided for in subsections (b)0) waiver of any provision of this policy. If the Company exercises its or (ii), the Company's obligations to the Insured under this policy rights under this subsection, it must do so diligently. for the claimed loss or damage, other than the payments required (c) Whenever the Company brings an action or asserts a to be made, shall terminate, including any liability or obligation to Form ANTTX-TI Owner's Policy of Title Insurance CONDITIONS (continued) defend, prosecute or continue any litigation. bonds, notwithstanding any terms or conditions contained in those 8. DETERMINATION AND EXTENT OF LIABILITY. instruments that address subrogation rights. This policy is a contract of indemnity against actual monetary 14. ARBITRATION. loss or damage sustained or incurred by the Insured Claimant who Either the Company or the Insured may demand that the claim has suffered loss or damage by reason of matters insured against or controversy shall be submitted to arbitration pursuant to the Title by this policy. Insurance Arbitration Rules of the American Land Title Association (a) The extent of liability of the Company for loss or damage ( "Rules "). Except as provided in the Rules, there shall be no joinder under this policy shall not exceed the lesser of: or consolidation with claims or controversies of other persons. (i) the Amount of Insurance; or Arbitrable matters may include, but are not limited to, any controversy (ii) the difference between the value of the Title as or claim between the Company and the Insured arising out of or insured and the value of the Title subject to the risk insured against relating to this policy, any service in connection with its issuance or by this policy. the breach of a policy provision, or to any other controversy or claim (b) If the Company pursues its rights under Section 3 or 5 and arising out of the transaction giving rise to this policy. All arbitrable is unsuccessful in establishing the Title, as insured, matters when the Amount of Insurance is $2,000,000 or less shall be (i) the Amount of Insurance shall be increased by 10 %, arbitrated at the option of either the Company or the Insured, unless and the Insured is an individual person (as distinguished from an Entity). (ii) the Insured Claimant shall have the right to have the All arbitrable matters when the Amount of Insurance is in excess loss or damage determined either as of the date the claim was made of $2,000,000 shall be arbitrated only when agreed to by both the by the Insured Claimant or as of the date it is settled and paid. Company and the Insured. Arbitration pursuant to this policy and (c) In addition to the extent of liability under (a) and (b), the under the Rules shall be binding upon the parties. Judgment upon Company will also pay those costs, attorneys' fees and expenses the award rendered by the Arbitrator(s) may be entered in any court incurred in accordance with Sections 5 and 7 of these Conditions. of competent jurisdiction. 9. LIMITATION OF LIABILITY. 15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE (a) If the Company establishes the Title, or removes the CONTRACT. alleged defect, lien or encumbrance, or cures the lack of a right (a) This policy together with all endorsements, if any, attached of access to or from the Land, all as insured, or takes action in to it by the Company is the entire policy and contract between the accordance with Section 3 or 7, in a reasonably diligent manner by Insured and the Company. In interpreting any provision of this policy, any method, including litigation and the completion of any appeals, this policy shall be construed as a whole. it shall have fully performed its obligations with respect to that (b) Any claim of loss or damage that arises out of the status matter and shall not be liable for any loss or damage caused to the of the Title or by any action asserting such claim, shall be restricted Insured. to this policy. (b) In the event of any litigation, including litigation by the (c) Any amendment of or endorsement to this policy must be Company or with the Company's consent, the Company shall in writing and authenticated by an authorized person, or expressly have no liability for loss or damage until there has been a final incorporated by Schedule A of this policy. determination by a court of competent jurisdiction, and disposition (d) Each endorsement to this policy issued at any time of all appeals, adverse to the Title, as insured. is made a part of this policy and is subject to all of its terms and (c) The Company shall not be liable for loss or damage to the provisions. Except as the endorsement expressly states, it does not Insured for liability voluntarily assumed by the Insured in settling any (i) modify any of the terms and provisions of the policy, (ii) modify claim or suit without the prior written consent of the Company. any prior endorsement, (iii) extend the Date of Policy or (iv) increase 10. REDUCTION OF INSURANCE; REDUCTION OR the Amount of Insurance. Each Commitment, endorsement or other TERMINATION OF LIABILITY. form, or provision in the Schedules to this policy that refers to a All payments under this policy, except payments made for term defined in Section 1 of the Conditions shall be deemed to costs, attorneys' fees and expenses, shall reduce the Amount of refer to the term regardless of whether the term is capitalized in Insurance by the amount of the payment. the Commitment, endorsement or other form, or Schedule. Each 11. LIABILITY NONCUMULATIVE. Commitment, endorsement or other form, or provision in the The Amount of Insurance shall be reduced by any amount Schedules that refers to the Conditions and Stipulations shall be the Company pays under any policy insuring a Mortgage to which deemed to refer to the Conditions of this policy. exception is taken in Schedule B or to which the Insured has agreed, 16. SEVERABILITY. assumed, or taken subject or which is executed by an Insured after In the event any provision of this policy, in whole or in part, Date of Policy and which is a charge or lien on the Title, and the is held invalid or unenforceable under applicable law, the policy amount so paid shall be deemed a payment to the Insured under shall be deemed not to include that provision or such part held this policy. to be invalid and all other provisions shall remain in full force and 12. PAYMENT OF LOSS. effect. When liability and the extent of loss or damage have been 17. CHOICE OF LAW; FORUM. definitely fixed in accordance with these Conditions, the payment (a) Choice of Law: The Insured acknowledges the Company shall be made within 30 days. has underwritten the risks covered by this policy and determined the 13. RIGHTS OF RECOVERY UPON PAYMENT OR premium charged therefor in reliance upon the law affecting interests SETTLEMENT. in real property and applicable to the interpretation, rights, remedies (a) Whenever the Company shall have settled and paid a claim or enforcement of policies of title insurance of the jurisdiction where under this policy, it shall be subrogated and entitled to the rights of the Land is located. Therefore, the court or an arbitrator shall apply the Insured Claimant in the Title and all other rights and remedies the law of the jurisdiction where the Land is located to determine the in respect to the claim that the Insured Claimant has against any validity of claims against the Title that are adverse to the Insured, person or property, to the extent of the amount of any loss, costs, and in interpreting and enforcing the terms of this policy. In neither attorneys' fees and expenses paid by the Company. If requested case shall the court or arbitrator apply its conflicts of laws principles by the Company, the Insured Claimant shall execute documents to to determine the applicable law. evidence the transfer to the Company of these rights and remedies. (b) Choice of Forum: Any litigation or other proceeding brought The Insured Claimant shall permit the Company to sue, compromise by the Insured against the Company must be filed only in a state or or settle in the name of thelnsured Claimant and to use the name of federal court within the United States of America or its territories the Insured Claimant in any transaction or litigation involving these having appropriate jurisdiction. rights and remedies. If a payment on account of a claim does not fully cover the loss of the Insured Claimant, the Company shall defer 18. NOTICES, WHERE SENT. the exercise of its right to recover until after the Insured Claimant Any notice of claim and any other notice or statement in writing shall have recovered its loss. required to be given the Company under this Policy must be given to the (b) The Company's right of subrogation includes the rights of Company at 2101 Ken Pratt Blvd., #102, Longmont, Colorado 80501. the Insured to indemnities, guaranties, other policies of insurance or Form ANTTX -TI Owner's Policy of Title Insurance a O > c a) U a s al >, E >•. m a J o a m > CO _ a) E a) a= o p ro . 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