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Francis Throop Survey, Abstract No. 1511 (1200 N Kimball Ave), 2013 - Settlement Agreement in Lieu of Condemnation SETTLEMENT AGREEMENT IN LIEU OF CONDEMNATION This SETTLEMENT AGREEMENT IN LIEU OF CONDEMNATION ( "Agreement ") is entered into by The City of Southlake, Texas ( "City") and Brian Jeffrey Massey a/k/a/ Jeff Massey ( "Massey ") (City and Massey, individually a "Party" and collectively the "Parties "): WHEREAS, Massey is the owner of an approximately 4.0009 acre tract of land generally located at 1200 Kimball Avenue, Southlake, Texas, and more particularly described in Exhibit "A" (the "Massey Property "); WHEREAS, City filed an Original Petition for Condemnation and a First Amended Petition For Condemnation against Massey, Masco Service Corporation, Jeff Massey Real Estate LLC, and Northstar Bank of Texas, seeking to acquire certain property interests by virtue of Plaintiff's eminent domain power as more specifically set out in City's First Amended Petition in Condemnation on file in Cause No. 2011- 003365 -3 (the "Condemnation Lawsuit ") in connection with improvements to Kimball Avenue from State Highway 114 to Dove Road (the "Kimball Avenue Project "); WHEREAS, Masco Service Corporation, Jeff Massey Real Estate LLC, and Northstar Bank of Texas have signed and filed in the Condemnation Lawsuit Disclaimers and Waivers disclaiming any right, title, or interest in any compensation awarded or to be awarded in connection with the Condemnation Lawsuit and any right to recover any compensation, fees, or expenses from City in connection with the City's nonsuit (dismissal without prejudice) of those parties from the Condemnation Lawsuit; and WHEREAS, City and Massey wish to avoid the potential uncertainty and expense of protracted litigation and have reached an agreement to settle the claims in the Condemnation Lawsuit; and WHEREAS, City and Massey specifically acknowledge that this Agreement is in settlement of an eminent domain action and is enforceable as such. NOW THEREFORE, in consideration of the recitals set forth above, the covenants, stipulations, promises, and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is admitted, City and Massey agree as follows: ARTICLE I DEFINITIONS 1.01 "Closing" means the meeting or meetings at the Title Company at which City and Massey will deliver the items required by Sections 10.02 and 10.03 of the Agreement. 1.02 "Survey" means an on- the - ground, staked plat of survey and metes - and - bounds description of the Land, prepared by a surveyor, licensed in the State of Texas, in compliance with the current standards and specifications as published by the Settlement Agreement In Lieu Of Condemnation PAGE 1 32450.13 Texas Society of Professional Surveyors. 1.03 All other capitalized terms will have the meaning given them in the Agreement. ARTICLE II RIGHT -OF -WAY PROPERTY 2.01 Subject to the terms, provisions, and conditions in this Agreement, Massey will, by a Deed in Settlement of Condemnation in the form attached hereto as Exhibit "D ", convey to City the following property (the "Right -Of -Way Property ") which conveyance will be subject to the reservations, exceptions, conditions and other terms contained in the Deed in Settlement of Condemnation: A 0.816 acre parcel of land located in the FRANCIS THROOP SURVEY, Abstract No. 1511, in the City of Southlake, Tarrant County, Texas, and being more particularly described by metes and bounds in Exhibit `B ", and shown on the Survey marked Exhibit "C ". ARTICLE III PERMANENT UTILITY AND DRAINAGE EASEMENT 3.01 Subject to the terms, provisions, and conditions in this Agreement, Massey will, by a Permanent Utility and Drainage Easement Agreement in Settlement of Condemnation in the form attached hereto as Exhibit "G ", grant to City a Permanent Utility and Drainage Easement (the "Permanent Utility and Drainage Easement ") upon and across the following property (the "Permanent Utility and Drainage Easement Property ") and subject to the reservations, exceptions, conditions and other terms contained in the Permanent Utility and Drainage Easement Agreement in Settlement of Condemnation: A 0.111 acre parcel of land located in the FRANCIS THROOP SURVEY, Abstract No. 1511, in the City of Southlake, Tarrant County, Texas, and being more particularly described by metes and bounds in Exhibit "E ", and shown on the Survey marked as Exhibit "F ". ARTICLE IV PERMANENT WALL EASEMENT 4.01 Subject to the terms, provisions, and conditions in this Agreement, Massey will, by a Permanent Wall Easement Agreement in Settlement of Condemnation in the form attached hereto as Exhibit "J ", grant to City a Permanent Wall Easement (the "Permanent Wall Easement ") upon and across the following property (the "Permanent Wall Easement Property ") and subject to the reservations, exceptions, conditions and other terms contained in the Permanent Wall Easement Agreement in Settlement of Condemnation: Settlement Agreement In Lieu Of Condemnation PAGE 2 A 0.28 acre parcel of land located in the FRANCIS THROOP SURVEY, Abstract No. 1511, in the City of Southlake, Tarrant County, Texas, and being more particularly described by metes and bounds in Exhibit "H ", and shown on the Survey marked as Exhibit "I ". ARTICLE V TEMPORARY CONSTRUCTION EASEMENT 5.01 Subject to the terms, provisions, and conditions in this Agreement, Massey will, by a Temporary Easement Agreement in Settlement of Condemnation in the form attached hereto as Exhibit "K ", grant to City a Temporary Construction Easement (the "Temporary Construction Easement ") upon and across the property (the "Temporary Easement Property ") described in the Temporary Easement Agreement in Settlement of Condemnation and subject to the reservations, exceptions, conditions and other terms contained in the Temporary Easement Agreement in Settlement of Condemnation: ARTICLE VI CONSIDERATION 6.01 The consideration for Massey's transfer to City of the property rights covered by this Agreement is the following: a) Massey shall be entitled to retain, without offset by or other reimbursement to City, the Three Hundred and Twenty Six Thousand Dollars ($326,000.00) City previously deposited into the registry of the Court in the Condemnation Lawsuit, which funds Massey has withdrawn from the registry of the Court. b) City shall pay Massey the additional sum of One Hundred and Fifty Thousand Dollars ($150,000.00) in cash at Closing. c) City stipulates and agrees that it will not deny Massey, Massey's successors, or assigns, or tenants of any of the foregoing, a Certificate of Occupancy or other permit for the buildings currently located on the Massey Property as of the Effective Date based on, in whole or in part, any failure of those buildings or any other improvements existing as of the Effective Date to comply, in whole or in part, with any City ordinance to the extent such nonconformity is created by, arises from, or is related to the transfer by Massey, in lieu of condemnation, of the property rights covered by this Agreement; without limitation, the City stipulates and agrees that it will not deny Massey, Massey's successors, or assigns, or tenants of any of the foregoing, a Certificate of Occupancy or any other permit for the buildings located on the Massey Property as of the Effective Date based on the failure of such buildings or the Massey Property to comply with any building setback, landscaping, bufferyard, impervious cover, parking, or driveway requirements to the extent such nonconformity is created by, arises from, or is related to the transfer by Massey ofthe property rights covered by this Agreement. Settlement Agreement In Lieu Of Condemnation PAGE 3 32450.13 d) City stipulates and agrees that Massey, Massey's successors, or assigns, or tenants of any of the foregoing will be allowed to construct a new parking lot (the "Replacement Parking Lot ") and drive on the Property, to replace the parking lost as a result of the transfer by Massey of the property rights covered by this Agreement. City acknowledges and agrees that the construction of the Replacement Parking Lot will not require that Massey, Massey's successors and assigns, and /or tenants of any of the foregoing bring existing nonconformities, if any, with the buildings on the Massey Property or the Massey Property itself, including those nonconformities, if any, which arise due the City's acquisition of the property interests pursuant to this Agreement, into compliance with, City's current ordinances, including, but not limited to, landscaping, bufferyard, screening, impervious cover, lighting, and setbacks, to the extent that such setback requirements are imposed due to the proximity of the New Parking Lot to Kimball Avenue, or tree preservation regulations. However, Massey, Massey's successors, or assigns, and /or tenants of any of the foregoing, when constructing the Replacement Parking Lot itself (whether constructed by Massey, Massey's successors, or assigns, and /or tenants of any of the foregoing) will be required to comply with all applicable City ordinances concerning parking lot construction, including those concerning lighting, setbacks, screening from adjacent residential property, dimensions, materials, construction methods, and similar technical requirements for the construction of a parking lot and a drive (but not including landscaping requirements unrelated to screening from adjacent residential properties). For purposes of the application of the provisions of this paragraph, the front yard of the Massey Property will be deemed to front on Kimball Avenue, the side yards will be deemed to be the northern and southern sides of the Massey Property, and the rear yard will be deemed to be the western side of the Massey Property. The Replacement Parking Lot the subject of this section d) shall consist of no more than ten (10) full size automotive parking spaces and related drives and curbs unless otherwise agreed in writing by the City. e) The City stipulates and agrees that Section 6.10a.4. of City's Zoning Code of Ordinances (Nonconforming Uses), a copy of which is attached as Exhibit "L" is in effect and applicable to the Massey Property as of the Effective Date , as it relates to the proximity of the current buildings and improvements on the Massey Property to Kimball Avenue. f) City, at City's sole expense, shall construct a new driveway ( "New Driveway ") and new drive ( "New Drive ") in accordance with the specifications attached as Exhibit "M ", at the location shown on Exhibit "N ". g) Until the New Driveway and New Drive are completed, City shall not close or impede access over and through the existing driveways shown on Exhibit "0" (the "Existing Driveways ") to the portion of the Massey Property remaining after the transfer of the Right -of -Way Property, provided, however, City may temporarily close one or more of the Existing Driveways from Kimball Avenue if: i) it is necessary and unavoidable for utility relocation and other construction activities in connection with the Kimball Avenue Project; and ii) City provides Massey with an alternative, temporary access drive from Kimball Avenue to the Massey Property that Settlement Agreement In Lieu Of Condemnation PAGE 4 is reasonably satisfactory to Massey. The New Driveway and New Drive will be completed during the construction of the roadway on the Right -of -Way Property, but in no event later than the date of termination of the Temporary Construction Easement Agreement, subject to extension as permitted herein. h) During construction of the Kimball Avenue Project, the City will make available to Massey or Massey's successors and assigns, at no cost to Massey or Massey's successors and assigns, for the Massey Property, one commercial connection to the City's sanitary sewer line (the "City Sewer Line ") and one commercial connection to the City's sanitary water line (the "City Water Line ") by providing service stub outs at the property line of the remainder of the Massey Property at a location agreed to by Massey or Massey's' successors and assigns in writing and by providing an appropriately sized water meter and sewer meter. i) The City will provide Massey or Massey or Massey's successors and assigns, a credit equal to the amount required to reconnect the existing three - quarter inch water line, including any applicable water meter fee, tap fee, capital recovery fee, impact fee, or other fee, and Massey or Massey, or Massey's successors and assigns, as applicable, shall pay any water meter fee, tap fee, capital recovery fee, impact fee, or other fee for any additional or an enlarged tap. j) The City will not charge Massey or Massey's successors and assigns, a sanitary sewer meter fee, tap fee or other fee (other than an impact fee as hereinafter provided) for connecting one commercial building to the City Sewer Line, provided Massey or Massey's successors and assigns, apply for such connections within 180 days after the City makes such connection available. If Massey or Massey's successors and assigns apply for a connection to the City Sewer Line between 181 days and 365 days after the City makes such connection available then Massey or Massey's successors and assigns, as the case may be, shall be obligated to pay fifty percent (50 %) of any then applicable sanitary sewer tap fees. If Massey or Massey's successors and assigns apply for a connection to the City Sewer Line more than 365 days after the City makes such connection available, then Massey or Massey's successors and assigns, as the case may be, shall be obligated to pay one - hundred (100 %) of any then applicable sanitary sewer tap fees. For purposes of this paragraph, the date the City Sewer Line connection becomes available is the date the City gives written notice to Massey or Massey's successors and assigns of the City's final acceptance of the Kimball Avenue Project sanitary sewer improvements. Massey or Massey's successors and assigns will be required to pay the then applicable sewer impact fee (currently $1,240.47 for a 1 inch meter and $3,969.50 for a 2 inch (compound) meter) when the remainder of the Massey Property is connected to the City Sewer Line. k) City agrees, covenants, and represents that City will not make, charge, or collect from Massey or Massey's successors and assigns any road assessment, paving assessment, capital recovery fee, impact fee, or other assessment or fee in connection with the street improvements constructed as part of the Kimball Avenue Project; however, Massey or Massey's successors and assigns, as the case may be, shall be Settlement Agreement In Lieu Of Condemnation PAGE 5 32450.13 obligated to pay applicable road assessment, paving assessment, capital recovery fee, impact fee, or other assessments or fees, if any, assessed against them in compliance with applicable law based on construction by the City of other improvements other than the Kimball Avenue Project. 1) City agrees, covenants, and represents that City will not make, charge, or collect from Massey or Massey's successors and assigns any charges or fees for, or require replacement of, any trees or other landscaping removed by the City pursuant to this Agreement or the agreements executed by the Parties in accordance with this Agreement. m) Massey will have the right to repurchase the property rights covered by this Agreement in accordance with the provisions of Section 21.101 of the Texas Property Code in effect as of the Effective Date, to the extent the conditions of Section 21.101 are met. n) The City will pay all closing costs at the Closing. ARTICLE VII TITLE AND SURVEY 7.01 City has received a title commitment (the "Title Commitment ") from Chicago Title Insurance Company through Rattikin Title Company (the "Title Company," a copy of which is attached as Exhibit "P ". City has no objections to the Title Commitment with the exception of Schedule B, Paragraphs 10.e., and Schedule C, Paragraphs 5.g., 5.h., 5.i., and 5.j., which objections Massey agrees to cure prior to Closing by delivering to Title Company at or before Closing: i) the Partial Release of Lien and Lienholder Consent and Subordination To Easement Agreements in the form attached as Exhibit "Q "; and ii) the Affidavit of Disclaimer and Waiver of Masco Corporation in the form attached hereto as Exhibit "R ". 7.02 Attached as Exhibits "C ", "F," and "I are copies of Surveys that City caused to be prepared for purposes of this Agreement. ARTICLE VIII MASSEY'S REPRESENTATIONS 8.01 As of the Effective Date and as of the Closing Date, Massey hereby represents to City as follows: a. Massey is the sole owner of the Right -Of -Way Property and has the right and ability to convey title to the Right -Of -Way Property to City in accordance with the Deed in Settlement of Condemnation attached hereto as Exhibit "D ", subject to the exceptions, reservations, and conditions contained in the Deed in Settlement of Condemnation and /or the Title Commitment. b. Massey is the sole owner of the Permanent Utility and Drainage Easement Property and has the right and ability to convey a Permanent Utility and Drainage Easement upon and Settlement Agreement In Lieu Of Condemnation PAGE 6 covering the Permanent Utility and Drainage Easement Property in accordance with the Permanent Utility and Drainage Easement Agreement in Settlement of Condemnation in the form attached as Exhibit "G ", and subject to the exceptions, reservations, and conditions contained in the Permanent Utility and Drainage Easement Agreement in Settlement of Condemnation and /or the Title Commitment. c. Massey is the sole owner of the Permanent Wall Easement Property and has the right and ability to convey a Permanent Wall Easement upon and covering the Permanent Wall Easement Property in accordance with the Permanent Wall Easement Agreement in Settlement of Condemnation in the form attached as Exhibit "J ", and subject to the exceptions, reservations, and conditions contained in the Permanent Wall Easement Agreement in Settlement of Condemnation and /or the Title Commitment. d. Massey is the sole owner of the Temporary Easement Property and has the right and ability to convey a Temporary Construction Easement upon such property in accordance with the Temporary Easement Agreement in Settlement of Condemnation in the form attached as Exhibit "K ", and subject to the exceptions, reservations, and conditions contained in the Temporary Easement Agreement in Settlement of Condemnation and /or the Title Commitment. e. Other than Massey, there are no holders of any liens or any type of possessory interest in or against the Right -Of -Way Property, the Permanent Utility and Drainage Easement Property, the Permanent Wall Easement Property, or the Temporary Easement Property, with the exception of any such interests that are subject to the exceptions, reservations, and conditions contained in the Deed in Settlement of Condemnation, Drainage Easement Agreement in Settlement of Condemnation, the Permanent Wall Easement Agreement in Settlement of Condemnation, or the Temporary Easement Agreement in Settlement of Condemnation. f There are no mineral leases in effect as of the Effective Date that give any mineral owners any surface rights in Right -Of -Way Property, the Permanent Utility and Drainage Easement Property, the Permanent Wall Easement Property, or the Temporary Easement Property. 8.02 Except as stated in section 8.01 above, Massey makes no representation with respect to the Property. 8.03 THERE ARE NO REPRESENTATIONS, DISCLOSURES, OR EXPRESS WARRANTIES, EXCEPT THOSE IN THIS AGREEMENT (IF ANY) AND NEITHER PARTY IS RELYING ON ANY REPRESENTATIONS OTHER THAN THOSE EXPRESSED IN THIS AGREEMENT (IF ANY). THERE ARE NO IMPLIED WARRANTIES. Settlement Agreement In Lieu Of Condemnation PAGE 7 32450.13 ARTICLE IX CITY'S REPRESENTATIONS 9.01 City hereby represents to Massey as follows, which representations shall be deemed made by City to Massey also as of the Closing Date: a. City is a municipal corporation with authority to perform its obligations under this Agreement. This Agreement is binding on City and enforceable as an agreement in settlement of a condemnation action 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. This Agreement is, and all documents required by this Agreement to be executed and delivered to Massey at Closing will be, duly authorized, executed, and delivered on behalf of City. b. In the event of a suit by Massey against the City for breach of this Agreement, City will not assert immunity from any such claim for breach of this Agreement asserted as part of such suit, pursuant to the law as set out in the cases cited above, but the City does not waive its right to assert governmental immunity for any other claims or causes of action, regardless whether such other claims or causes of action are related to or arise out of the same or different facts, and the City does not waive its right to assert governmental immunity and /or statutory protections against recovery of any types of damages other than actual damages, including punitive or exemplary damages. 9.02 WAIVER OF CONSUMER RIGHTS: CITY WAIVES ITS RIGHTS UNDER THE TEXAS DECEPTIVE TRADE PRACTICES— CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ. OF THE TEXAS BUSINESS AND COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN SELECTION, CITY VOLUNTARILY CONSENTS TO THIS WAIVER. 9.03 THERE ARE NO REPRESENTATIONS, DISCLOSURES, OR EXPRESS WARRANTIES, EXCEPT THOSE IN THIS AGREEMENT (IF ANY) AND NEITHER PARTY IS RELYING ON ANY REPRESENTATIONS OTHER THAN THOSE EXPRESSED IN THIS AGREEMENT (IF ANY). THERE ARE NO IMPLIED WARRANTIES. ARTICLE X CLOSING 10.01 The Closing of this Settlement Agreement shall be held on or before May 31, 2013 or such other date as may be mutually agreed upon by the Parties (the "Closing Date "), at the Title Company, in one or more meetings as convenient for the Parties. Settlement Agreement In Lieu Of Condemnation PAGE 8 10.02 The Closing, and City's obligations under Agreement, are expressly conditioned on: a. Massey's delivery to City of a duly executed and acknowledged Deed in Settlement of Condemnation in the form attached as Exhibit "D "; b. Massey's delivery to City of a duly executed and acknowledged Permanent Utility and Drainage Easement Agreement In Settlement of Condemnation in the form attached hereto as Exhibit "G "; c. Massey's delivery to City of a duly executed and acknowledged Permanent Wall Easement Agreement In Settlement of Condemnation in the form attached hereto as Exhibit "J "; d. Massey's delivery to City of a duly executed and acknowledged Temporary Easement Agreement In Settlement of Condemnation in the form attached hereto as Exhibit "K "; e. Massey's delivery to City of a duly executed and acknowledged Non - Exclusive Joint Use Private Access Agreement Easement in the form attached hereto as Exhibit "T ", which agreement will be recorded after the recordation of the_Deed in Settlement of Condemnation, the Permanent Utility and Drainage Easement Agreement In Settlement of Condemnation, the Permanent Wall Easement Agreement In Settlement of Condemnation, and (if it is recorded) the Temporary Easement Agreement In Settlement of Condemnation; f. Massey's execution of such documents and instruments reasonably requested by the Title Company to consummate the transactions contemplated herein; and g. Delivery to City of possession of the Right -of -Way Property, in accordance with the Deed in Settlement of Condemnation. 10.03 The Closing, and Massey's obligations under this Agreement, are expressly conditioned on: a. City's delivery to Massey, by federal wire or cashiers' check, payment of the additional sum of One Hundred and Fifty Thousand Dollars ($150,000.00), plus payment of any closing costs as set forth on the Closing Statement prepared by the Title Company; and b. City's execution of such documents and instruments reasonably requested by the Title Company to consummate the transactions contemplated herein. 10.04 The prevailing party in any adjudication of any proceeding relating to this Agreement may recover his /its /their reasonable and necessary attorney's fees. Settlement Agreement In Lieu Of Condemnation PAGE 9 32450.13 ARTICLE XI MISCELLANEOUS 11.01 This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the Parties created hereunder are performable in Tarrant County, Texas. 11.02 This Agreement, its exhibits, and any closing documents delivered at Closing (the "Agreement Documents ") constitute the entire agreement of the Parties concerning the transfer of property interests by Massey to City in lieu of condemnation. There are no representations, warranties, agreements, or promises pertaining to the transfer of property interests by Massey to City and no representations, warranties, agreements, or promises by the City to Massey pertaining to the City's obligations to Massey that are not in the Agreement Documents. 11.03 City may not assign this Agreement or any of City's rights under it without Massey's prior written consent, which consent will not be unreasonably withheld, and any attempted assignment is void. The consent by Massey to any assignment by City will not release City of its obligations under this Agreement, and City and the assignee will be jointly and severally liable for the performance of those obligations after any such assignment. Massey may assign his rights under this Agreement. This Agreement binds, benefits, and may be enforced by the Parties and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns. 11.04 In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, this invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein, and the remainder of this Agreement shall remain effective. 11.05 Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 11.06 In this Agreement, time is of the essence and compliance with the times for performance is required. All deadlines in this Agreement expire at 5:00 P.M. local time where the Right -Of -Way Property is located. If a deadline falls on a Saturday, Sunday, or national holiday, the deadline will be extended to the next day that is not a Saturday, Sunday, or national holiday. A national holiday is a holiday designated by the federal government. 11.07 Any notice required or permitted to be delivered hereunder shall be deemed received when sent by certified United States mail, postage prepaid, return receipt requested, addressed to Massey or City, as the case may be, at the address set forth below the signature of the party hereunder or such other address as Massey or City may provide by written notice to the other party. Further, any notice to Massey will also be given to Massey's attorney, R. Matthew Molash, Shupe Ventura Lindelow & Olson, PLLC, 500 Main Street, Suite 800, Fort Worth, Settlement Agreement In Lieu Of Condemnation PAGE 10 Texas 76102 or such other address as Massey's attorney may provide by written notice to City, and any notice to the City will also be given the City's attorneys, Taylor, Olson, Adkins, Sralla & Elam, L.L.P., Attn: Tim G. Sralla, 6000 Western Place, Suite 200, Fort Worth, Texas 76107. 11.08 This Agreement may be amended only by an instrument in writing signed by all the Parties. 11.09 If this Agreement is executed in multiple counterparts, all counterparts taken together constitute this Agreement. Copies of signatures to this Agreement are effective as original signatures. 11.10 Within thirty (30) days of the Closing, funding and delivery of the documents required by this Agreement, City will request that the Court dismiss the Condemnation Lawsuit, with costs to be borne by the party incurring them. 11.11 Massey's and City's respective representations, rights and obligations under Paragraphs 6.01, 8.01(e), 8.01(f), 8.03, 9.01, 9.02, 9.03, and 10.04 and Article XI will survive the Closing of this Agreement and will not merge into the Deed in Settlement of Condemnation, Permanent Utility and Drainage Easement Agreement In Settlement of Condemnation, Permanent Wall Easement Agreement In Settlement of Condemnation or the Temporary Easement Agreement in Settlement of Condemnation. EXECUTED to be effective (the "Effective Date ") as of May 31, 2012. MASSEY: CITY: BRIAN JEFFREY MASSEY CITY OF SOUTHLAKE, TEXAS 6 1/ m C „K By: = Y Jeff Masse The Honorable John Terrel , Mayor 1200 North Kimball Ave ite 1400 Main Street Southlake, Texas 76092 Southlake, Texas 76092 Attest: ,,,,, ill`11Qt • I^ J _ ) • Alicia Richardson, City 'et. 1 r e ° e •• 41 is, , ,, P P a *4(4', `eS' Settlement Agreement In Lieu Of Condemnation PAGE 11 32450.13 ACKNOWLEDGMENTS STATE OF TEXAS § § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared BRIAN JEFFREY MASSEY, known, to me (or proved to me on the oath of -- or through Dr i vies Li ccas1 [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 O , • F ICE, this the 3 C) da . May 201 ' 4 SHAY TOWNSEND Notary Pubic # /�� STATE OF TEXAS L 1_�� f ______ ____,,,4 ``' o. My Comm. Exp. Dec. 1 i Notary Public in an • for The State of Texas My Commission Expires: Typed or Printed 'ame of Notary 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, Mayor of the City of Southlake, 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, and in the capacity therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 31w day of May, 2013. P.''be , LAUREN J. PHILLIPS —1,, * NOTARY PUBLIC i' STATE OF TEXAS Notary Public in d for o, * ° - MY COMM. EXP. 11/10/2014 The State of Texas My Commission Expires: L46.1 <-1 . K A. % p5P Typed or Printed Name of Notary 1►• 1o. Z.011.1 Settlement Agreement In Lieu Of Condemnation PAGE 12 EXHIBIT "A" MASSEY PROPERTY DESCRIPTION EXHIBIT "B" RIGHT -OF -WAY PROPERTY EXHIBIT "C" PROPERTY SURVEY RIGHT -OF -WAY PROPERTY EXHIBIT "D" DEED IN SETTLEMENT OF CONDEMNATION RIGHT -OF WAY PROPERTY EXHIBIT "E" PROPERTY DESCRIPTION UTILITY AND DRAINAGE EASEMENT EXHIBIT "F" SURVEY UTILITY AND DRAINAGE EASEMENT EXHIBIT "G" PERMANENT UTILITY AND DRAINAGE EASEMENT AGREEMENT IN SETTLEMENT OF CONDEMNATION EXHIBIT "H" PROPERTY DESCRIPTION WALL EASEMENT EXHIBIT "I" SURVEY WALL EASEMENT Settlement Agreement In Lieu Of Condemnation PAGE 13 32450.13 EXHIBIT "J" PERMANENT WALL EASEMENT AGREEMENT IN SETTLEMENT OF CONDEMNATION EXHIBIT "K" TEMPORARY CONSTRUCTION EASEMENT AGREEMENT IN SETTLEMENT OF CONDEMNATION EXHIBIT "L" SOUTHLAKE ORDINANCE EXHIBIT "M" DRIVEWAY AND DRIVE SPECIFCIATIONS EXHIBIT "N" DRIVEWAY AND DRIVE LOCATION EXHIBIT "0" EXISTING DRIVEWAY LOCATIONS EXHIBIT "P" TITLE COMMITTMENT EXHIBIT "Q" PARTIAL RELEASE OF LIEN AND LIENHOLDER CONSENT AND SUBORDINATION TO EASEMENT AGREEMENTS EXHIBIT "R" AFFIDAVIT OF DISCLAIMER AND WAIVER OF MASCO CORPORATION EXHIBIT "S" THERE IS NO EXHIBIT S EXHIBIT "T" NON - EXCLUSIVE JOINT USE PRIVATE ACCESS EASEMENT Settlement Agreement In Lieu Of Condemnation PAGE 14 Approved: 4-7 City Attorney SETTLEMENT AGREEMENT EXHIBIT A EXHIBIT "A" (i BEING a 4.009 acre tract of land in the Francis Throop Survey, Abstract No. 1511, Tarrant County, Texas u described in decd to Brian Jeffery Massey and Ryan Todd Massey as recorded in Volume 16429, Page 396 of the Deed Records of Tarrant County, Texas and being more particularly described as follows: BEGINNING at a P.K. Nail set in the asphalt at the southeast corner of said Throop survey, said corner being the centerline oldie intersection of East Highland Street (Co. Road 3034) and Kimball Avenue (Co. Road 3119); 0 THENCE N 89' 05' 00" W along centerline of said East Highland Street a distance of 331.60 (j feet to a P.K. Nail set in the asphalt; ( THENCE N 00' 12' 00 E passing at 20.00 feet a 1/2" iron rod found in the north right -of -way line of said East Highland and at 41.86 feet a 12" iron rod found disturbed and being by plat the southeast corner of The Hill Addition, an addition to the City of Southlake as recorded in Volume 388 -159, Page 96 of the Plat Records of Tarrant County, Texas, and continuing along the east line of said The Hill Addition a total of 526.60 feet to a 12" iron rod set with a "TQ Burks N5509" cap said point being by deed call the southwest comer of a tract of land described in decd to Richard Holliday and wife, Mary Ann Holliday as recorded in Volume 14325, Page 524 D.R.T.C.T.; THENCE S 89' 10 10" E along south line of said Holliday tract passing at 305.45 feet a 1/2" iron rod set with a "TQ Burks /15509" cap in the west right -of -way line of said Kimball Avenue, and continuing in all 331.45 feet to a F.K. Nail set in the asphalt in the centerline of said Kimball Avenue; THENCE S 00' 1I' 02 along said centerline of Kimball Avenue a distance of 527.10 feet to the Point of Beginning and containing in all 174651 square feet of 4.009 acres of land in which 0.455 acres of land fails in said street right -of -ways, leaving a net of 3.555 acres. EXHIBIT 013629.00001:786236 01 F _. runty: TARRANT Doc: 000239648 Date: 07/03/2003 Vol: 0016881 Paae: 00198 Paae 3 of 5 SETTLEMENT AGREEMENT EXHIBIT B Ilk EXHIBIT "A" LEGAL. DESCRIPTION PERMANENT RIGHT-OF;WAY NORTH Knill3ALL AVE PARCEL 15 BEING 0.816 acre of and •located in the FRANCIS THROOP SURVEY. ABSTRACT No. 1511, Southiake, Tarrant County, Texas, and bebg a portion of a -tract of and conveyed to Jeff littassey, by deed rectirded in'Volurrie 1:M31, Page 198. of the Deed Records of Tarrant County. Teas. Saki 0.816 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 Massey Tract, and tying at the interseclion of the centedthe of North Kimball Avenue. with the centerline of E. Highland Street; THENCE N 89' 39' 25" W 331.64 feet, along the South boundary line of said Massey Tract, and along the centerline of E Highland Street THENCE N 00* 35' 06" W 34.98 feet. along the West boundary line of said Massey Tract, to a W iron rod marked - Britain & Crawford' set, in the new NiOrth right-of-way lineof said E. Highland Street THENCE 5 89' 38' 59' E 269.97 feet, along the new North right-of-way line of said E. Highland Street to a W iron rod rnarked & Crawford" set in the new West right-of-way line of said North Kimbalt Street; THENCE along the new West right-of-way line of said North Kimball Street, as follows'. . N 45' 00' 00 E 19.71 feet, to a W iron rod m "Britain & Crawford' set 2. N 00' 49' 3-1 478.08feet, to a W iron rod marked 'Britain & Crawford" set in the North boundary line of said -Massey Tract, lying in the South boundary line of a tract &land conveyed to Richard Holliday and wile, Mary Ann Holliday, by the deed recorded in Volume 14325, Page 524, by the Deed Records of Tarrant County. Texas; THENCE S 89' 45 37' E 49.42 feet, along the North boundary line of said Massey Tract, and the South boundary line of said Holliday Tract, to a 'PK" nail found at the Northeast corner of said Massey Tract, lying in the centerline of said North Kimball Avenue; THENCE S 00' 36' ir E 527.10 feet, along the East boundary line of said Massey Tract, and the centerline of said North Kimball Avenue, to the POINT OP BEGINNING, containing 0816 acre (35,543 square feet) at land, EXHIBIT ;r2C+392ac;prAcIrsabail-regalslprowl5 SETTLEMENT AGREEMENT EXHIBIT C III • AREA TABLE RCHARD HOLLIDAY AND WIFE. i! 0.816 ACRE TOTAL MARY ANN HOLLEIAY ( C .` SO•FT.) VOL 14325. PC. 524. D.R.T,C,T- I , 0.47 A RE S 89 °45'37 "E I RIGHT —OF •WAY 49.42' 1 aK_NNL FOUND 0,338 ACRE NET I , 04,70o so.FT.) — — -- —- — — TUMBLEWEED y /2 AS 50• TRAIL ` PERMANENT I — __ ____ RICHT-Of -WAY UNE (. - � { r, 4� II - J Csi EFF MASSEY 4 I VOL 16881. PG. 198 D.R.T.C.T. : NC _OT 3. THE HILL ADDITION VOL. 388 -154, PC. 96 t� P -R -T C.T. -,. y W = s�+n o+ g en2 CRIPPLE CREEK .r 0 it M LANE o 4 Li '6 __ o . o I h 1 ' I Z z in h PERMANENT I 1 � RIGTIT -OF-WAY UNE N 45 °00'00 "E 4. N 00 °35'06 "W 19.71'' 34 98' 1 S 89 °38'59 "E 1/2 1 IRS 1/2" I 269.97' 177 f . POINT OF SURVEY LINE T n CEKTERUNE ROAD N BEGINNING " PK" NMI T•'OUP4O _ _PI_89 ° 39 ' 2,51. 11 - .331 -.64' I N CDN1ER IJNE . PK" YAK. fOUNC N 1 INTERSECTION CENTERLINE OF ROAD A PRESCRIPTIVE \P RICNT -OF -WAY UNE 2 0' 1 cr r ? � I Q$ 1 SURVEYED ON THE GROUND 1 i t OCTOBER 7. 2000 • cE = 1 1 t O F rF : .� dDT N L .:uses L BMWs ,_. _' 1674 7�.` „/ PROFESSIONAL • TEL ' s,_S - o PROPERT' CORNER NOTE REGISTERED WAD SURVEYOR . SURF ALL PROPERTY CORNERS SET ARE 1/2" IRON ROOS STATE OF TEXAS NO. 1674 (1/2'1R$) WITH GAP MARKED "ERRfTMAN & CRAWFORD' CITY OF SOUTHLAKE l ., \ 1 1400 MAIN STREET. SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET EXHIBIT "B" 1- i &rrrrAm & CR WFO D PERMANENT RIGHT —OF —WAY i t ,,,, 0.816 ACRE OF LAND = AuING te l LOCATED IN THE 111,6-4., t m u `••, • s "" „' FRANCIS THROOP SURVEY W .0 a , a+•1 sa�IlSa .. w lat r ire . UM SOIT.. MCI. .«. Mtn. *r. ft, ABSTRACT No. 1511 ossOMMIlia....0.t boon SOUTHLAKE, TARRANT COUNTY, \KWoN:\„AOMts\ TEXAS SCALE 1” = 100' .suIV4a SETTLEMENT AGREEMENT EXHIBIT D Deed In Settlement Of Condemnation Effective Date: May _, 2013 Grantor: Brian Jeffrey Massey a/k/a/ Jeff Massey Grantor's Mailing Address: 1200 Kimball, Southlake, TX 76092 Grantee: The City of Southlake, Texas, a municipal corporation Grantee's Mailing Address: The City of Southlake, Texas, c/o City Manager, 1400 Main Street, Southlake Texas, 76092 Consideration: Ten and No /100 Dollars ($10.00) and other good and valuable consideration paid by the City of Southlake, Texas. Property (including any improvements): The property described on Exhibit A the ( "Right -of- Way Property "). Reservations from Conveyance: For Grantor and Grantor's successors and assigns forever, a reservation of all interests in the water, oil, gas, hydrocarbons, and other minerals and materials (and all executory and leasing rights relating thereto) in and under and that may be produced from the Right -of- Way Property. If the reserved estate is subject to existing production or an existing lease, this reservation includes the production, the lease, and all benefits from it. Grantor waives the right to enter upon or use the surface of the Right -of -Way Property in any manner whatsoever (except as a member of the public). Nothing herein, however, restricts or prohibits the pooling or unitization of the portion of the reserved estate owned by Grantor with land other than the Right -of -Way Property, or the exploration or production of the water, oil, gas (including casinghead gas and all gaseous substances), hydrocarbons, and other minerals and materials by means of wells that are drilled or mines that open on land other than the Right -of -Way Property but enter or bottom under the Right -of -Way Property, provided, however, that Grantor and Grantor's successors and assigns shall have the right to produce the water, oil, gas, hydrocarbons, and other minerals and materials reserved herein only by directional drilling or other indirect means at a depth of not less than two hundred feet (200') below the surface of the Right -of -Way Property in a manner which does not enter upon, or interfere with the occupancy, use or enjoyment of, the surface of the Right -of -Way Property by Grantee, its successors and assigns, or disturb any improvements now or hereafter situated on the surface of the Right -of -Way Property, nor undermine the vertical or lateral support of any improvements now or hereafter situated on the surface of the Right -of -Way Property. EXHIBIT 1 D 32473.5 Exceptions to Conveyance and Warranty: Any and all of the following held or claimed by a governmental entity or utility provider, whether of record or not: (i) validly existing prescriptive easements; (ii) visible and apparent rights of way; and (iii) visible and apparent prescriptive rights. 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, other than conveyances of the surface fee estate, that affect the Right -of -Way Property; validly existing utility easements created by recorded dedication deed or plat; matters described on Exhibit B; 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 Right -of- Way Property; validly existing rights of adjoining owners in any walls and fences situated on a common boundary; any discrepancies, conflicts, or shortages in area or boundary lines; any encroachments or overlapping of improvements; standby fees, taxes, and assessments, if any, by any taxing authority for 2013, and subsequent assessments for 2013 and prior years due to change in land usage, ownership, or both. Grantor, for the Consideration and subject to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty conveys to Grantee the Right -of -Way Property, without warranty of title, either expressed or implied, and subject to the terms, conditions, limitations, reservations, and exceptions contained herein. Representations: There are no mineral leases in effect as of the Effective Date that give any mineral owners any surface rights in the Right -Of -Way Property. 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 STATED IN THIS DEED. GRANTEE IS NOT RELYING ON ANY REPRESENTATIONS, DISCLOSURES, OR EXPRESS OR IMPLIED WARRANTIES BY GRANTOR OR ANY PERSON OR ENTITY ACTING ON GRANTOR'S BEHALF OR FOR WHOM GRANTOR HAS RESPONSIBILITY OTHER THAN THOSE EXPRESSLY CONTAINED IN THIS DEED. PURCHASER IS NOT RELYING ON ANY INFORMATION REGARDING THE RIGHT -OF -WAY PROPERTY INTERESTS PROVIDED BY GRANTOR OR ANY PERSON OR ENTITY ACTING ON GRANTOR'S BEHALF OR FOR WHOM GRANTOR HAS RESPONSIBILITY, OTHER THAN GRANTEE'S OWN INSPECTION AND THE REPRESENTATIONS CONTAINED IN THIS DEED. When the context requires, singular nouns and pronouns include the plural. 2 32473.5 EXECUTED to be effective as of May _, 2013. GRANTOR: GRANTEE: BRIAN JEFFREY MASSEY CITY OF SOUTHLAKE, TEXAS By: By The Honorable John Terrell, Mayor Attest: City Secretary 3 32473.5 ACKNOWLEDGMENTS STATE OF TEXAS § § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared BRIAN JEFFREY MASSEY, 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 day of May, 2013. Notary Public in and for The State of Texas My Commission Expires: Typed or Printed Name of Notary 4 32473.5 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, Mayor of the City of Southlake, 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, and in the capacity . GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of May, 2013. Notary Public in and for The State of Texas My Commission Expires: Typed or Printed Name of Notary 5 32473.5 Exhibit "A" Description of Right -Of -Way Property 6 32473.5 • • EXHIBIT "A" LEGAL DESCRIPTION PERMANENT RIGHT -OF -WAY NORTH KIMBALL AVENUE PARCEL 15 BEING 0.816 acre of Land located in the FRANCIS THROOP SURVEY, ABSTRACT No 1511, Southiake, Tarrant County, Texas, and being a portion of a tract of land conveyed to Jeff Massey, by the deed recorded in Volume 16881, Page 198. of the Deed Records of Tarrant County. Texas. Said 0.816 acre of land being more particularly described by metes and bounds as follows. BEGINNING at a "PK' nail found at the Southeast comer of said Massey Tract, and tying at the intersection of the centerline of North Kimball Avenue. with the centerline of E. Highland Street; THENCE N 89` 39' 25" W 331.64 feet, along the South boundary line of said Massey Tract, and along the centerline of E. Highland Street: THENCE N 00' 35' 06" W 34.98 feet. along the West boundary line of said Massey Tract, to a 1 /2" iron rod marked °Britain & Crawford' set, in the new North right- of-way line of said E. Highland Street; THENCE S 89° 38' 59' E 269.97 feet, along the new North right -of -way line of said E. Highland Street to a W iron rod marked "Brittain & Crawford* set in the new West right -of -way line of said North Kimball Street; THENCE along the new West right -of -way line of said North Kimball Street, as follows. 1. N 45' 00' 00' E 19.71 feet, to a W' iron rod marked "Brittain & Crawford" set; 2. N 00' 49' 31" W 478.08 feet, to a W iron rod marked "Brittain & Crawford" set in the North boundary line of said Massey Tract. lying in the South boundary fine of a tract of land conveyed to Richard Holliday and wife, Mary Ann Holliday, by the deed recorded in Volume 14325, Page 524, by the Deed Records of Tarrant County. Texas: THENCE S 89' 45' 37' E 49.42 feet, along the North boundary line of said Massey Tract. and the South boundary line of said Holliday Tract, to a "PK" nail found at the Northeast corner of said Massey Traci, Tying in the centerline of said North Kimball Avenue; THENCE S 00' 36' 17" E 527.10 feet, along the East boundary line of said Massey Tract, and the centerline of said North Kimball Avenue, to the POINT OF BEGINNING, containing 0,816 acre (35,543 square feet) of Land. 1y EXHIBIT 1 0 0 a AREA TABLE TOTAL ( RICHARD HOLIDAY AND WIFE. Si uARY ANN HOLL 1'Y (35.543 SQ.FT.) VOL 14325, PC. 524. OR.T.. ;.T. ' ' 0.477$ ACRE D4 S 89 °45'37 "E St ( 69 49.42' ! 7-1- "Pr' NAIL FOUND 0.338 ACRE NET (14.700 SQ.FL) — - - S — vr IRS 5:0' M R BLENF ED AIL b - - Z RIGHT -OF -WAY L{PE al Ooh b g 0 z co Ijj JEFF MASSEY r in 4 VOL. 16881, PG. 198 ti 1 D.R.T.C.T. ° `r —t G L.OT 3. THE HILL ADDITION ` VOL 386 -159, PG. 96 P.R.T.C.L ,��1 WI !a! 6\ ca - r 0 CRIPPLE CREEK ' " tel LANE 0 04 .,0 I h Z - 41- PA RI Y L N 45 °OO'00 "E L�£T- 0E-WAY LINE j 19.71' N OO °35'06 "W E 34 98' I S 89 °38'59 "E 1 / 2 1 IRS ... 1 I 269.97' -445 12"5 POINT OF SURVEY UNE _ H CO4TFRUNE "t�'z' N BEGINNING NAIL FOUND — _N_89 °39'2,5_'1 -33 t S4` t I IN Ca4TERLINE "PK" NAf.. FOUND IN t tNTEpSECTtON CENTER'JNE OF ROAD PRESCRIPTNE ,e 1 RID1T -O -WAY LINE a , I z I SURVEYED ON THE GROUP i = 1 0CT06ER 7. 2009 I /f . J .mr,I L• Bd{77ANi -, 1..^ ' y 1674 ' '> ' PROPERTY CORNER NOTE 8U - ALL PROPERTY CORNERS SET ARE 1/2" IRON RODS 5017E OF 7EJ01S N0. 1674 (1 /2"IRS) NIItt1 CAP MARKED "at fTTAIN k CRAWrORO" t f CITY Of SOLJTHLAKE LS ' 1400 MAIN STREET, SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET EXHIBIT "B" 4 BECITA T &CRAWFoRD PERMANENT RIGHT -OF -WAY m wm streRVtY AP t IGROGRAPNC 0 13. & ACRE OF LAND _ ..~ LOCATED IN THE X IC 1,,.). .1,- ,n,,,,t.1,,,e.s,a FRANCIS THROOP SURVEY W .... . �t1Tj gFf31i 1.0. !@ /IVA . *Mg 101M,w.lNT fart , , , ° ITM ABSTRACT No. 1511 SOUTKLAKE, TARRANT COUNTY, umma� owns\ TEXAS SCALE 1"-= 100' .saigga Exhibit "B" Schedule from Title Commitment 7 32473.5 SCHEDULE B EXCEPTIONS FROM COVERAGE GF Number 09 -04451 In addition to the Exclusions and Conditions and Stipulations, your Policy will not cover loss, costs, attomey's fees, and expenses resulting from: 1. The following restrictive covenants of record itemized below (We must either insert specific recording data or delete this exception): In policy to be issued, Item No. 1 will be deleted. 2. Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements. . 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 fine 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. • •••.. '1110 • • • .• -.- • • - • •. 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.): (09- 04451. PFD /09- 04451130) FORM T-7: Commitment for Title Insurance (Schedul. RATI1KIN TITLE COMPANY, FORT WORTH, TEXAS a) EXHIBIT B aft SCHEDULE B (Continued) GF Number. 09 -04451 a. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the title that would be disclosed by an accurate and complete land survey of the Land. (Note: Upon receipt of a survey acceptable to Company, this exception will be deleted. Company reserves the right to add additional exceptions per its examination of said survey.) b. Easement for right-of-way recorded in Volume 2063, Page 351, Deed Records of Tarrant County, Texas. c. Easement for right- of-way recorded in Volume 2063, Page 353, Deed Records of Tarrant County, Texas. d. Easement for right -of -way granted to TEXAS POWER & LIGHT COMPANY by instrument recorded in Volume 8220, Page 437, Deed Records of Tarrant County, Texas. D208276040, Dccd Rccordo of Tarrant County, Tcxos. - Memors r . g. Terms, conditions, and stipulations contained in lease agreement between Jeff Massey and wife, Jodie Lynn Massey, as Lessor, and New Cingular Wireless PCS, LLC, as Lessee, a Memorandum of which is filed for record under Clerk's File No. D212219369, Deed Records of Tarrant County, Texas. h . - -- - --. - • - -._ FORM T-7: Commitment for Title Insurance {Schednia ( 51.PFDI09- 0445 ?130) ej - -niKtN TITLE COMPANY, FORT WORTH, TEXAS EXHIBIT I B tof.t. SETTLEMENT AGREEMENT EXHIBIT E • • EXHIBIT "A" LEGAL DESCRIPTION PERMANENT UTILITY, DRAINAGE AND WALL EASEMENT NORTH KIMBALL AVENUE PARCEL 15 BEING 0.111 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 Jeff Massey, by the deed recorded in Volume 16881, Page 198, of the Deed Records of Tarrant County, Texas. Said 0.111 acre of land being more particularly described by metes and bounds as follows: BEGINNING at a W iron rod marked "Brittain & Crawford" set in the North boundary line of said Massey Tract. and lying N 899° 45' 37` W 49.42 feet. from a 'PK" nail found marking the Northeast corner of said Massey Tract. Said Point of Beginning also lying in the new West right- of-way tine of North Kimball Avenue; THENCE S 00' 49' 31" E 478.08 feet, along the new West right -of -way line of said North Kimball Avenue, to a W iron rod marked "Brittain & Crawford', set; THENCE S 45° 00` 00" W 13.94 feet, to a point; THENCE N 00' 49' 31" W 487.98 feet, to a point in the North boundary line of said Massey Tract THENCE S 89° 45' 37" E 10.00 feet, along the North boundary line of said Massey Tract, to the POINT OF BEGINNING, containing 0.111 acre (4,830 square feet) of land. g2CC9:. 's; .leysx -13a EXHIBIT I E. SETTLEMENT AGREEMENT EXHIBIT F s I RICKARD HOLUOAY AND WIFE. WARY AI44 HOLLIDAY W VOL 14325, PO. 524, D.R.T.C.T. La I k1 1 POINT OF BEGINNI D ' 8 - s CORNER 1/2" IRON ROD SET co MASSEY TRACT "PK" NAIL FOUND - - - _ TUMBLEWEED S 89 °45'37"E 1 TRAIL pT� 10.00' N 89.45'37 FT 49.42' PERMANENT MUTT, DRAINAGE 1 vxor o ten AND WALL EASEME?fr . 1 0.111 ACRE / 41,830 SO.FT. LIME z JEFF MASSEY h I VOL 16881, PG. 198 . °Q � 03 < t LOT 3. THE MU. ADDITION D.R.T.C.T. m 0 1 VOL 388 -159. P. 95 iJ t PR7CT. 1 1 M7 M - - 1 •mot v g CRIPPLE CREEK �, �� c ) o LANE �,. 0 o I r-- - - � z � � t I 1 y NEW 1 RIGHT OF - ]Y/T LSNE 1 e S 45°00'OO"W 1 t 1 /2 t 13.94' 3.94' t - - ... - 14. IRS SURVEY UNE _ - - - (EM'ERL1NE ROAD - - 'PK' NAIL FOUND - - - - - - CDFR "PK" NAL CENTERLINE IN D i � 1 t � TRACT y moo A ce' I g s°j J 1 1 { - 4 — 4, 1S PROPERTY CORNER NOTE SCALE 1 "= 100' ALL PROPERTY CORNERS SET ARE 1/2" IRON RODS (1/2" IRS) vex CAP umocED "BRITTl tv & I ORD" CITY OF SOUTHLAKE I S 1 400 MAIN STREET, SOIUTHLAXE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET EXHIBIT "B" BETITA N & CRsugot D PERMANENT UTILITY, DRAINAGE _ - Imo = AND WALL EASEMENT < . *r,% -i ., m fig: sn -OM .11170 011.714M-0,11 0.111 ACRE OF LAND ; carts L. E RS7AN _ I . 0. .'r . °t . .. FRANCIS THR� SURVEY y i . X auks 110.41•411.1 ABSTRACT No. 1511 LIJ tla�urL�s -1st SOU€Ht.AKE, €ARRANT COUNTY, TEXAS JULY 8. 2010 .sa109R3 SETTLEMENT AGREEMENT EXHIBIT G NON - EXCLUSIVE UTILITY AND DRAINAGE EASEMENT AGREEMENT IN SETTLEMENT OF CONDEMNATION STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TARRANT § Effective as of May _, 2013 (the "Effective Date ") that Brian Jeffrey Massey a/k/a/ Jeff Massey, whose mailing address is 1200 Kimball Avenue, Southlake, TX 76092, 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 and Drainage Easement Agreement In Settlement Of Condemnation (the "Permanent Utility and Drainage Easement Agreement ") has granted, and by these presents does grant unto said Grantee a non- exclusive utility and drainage easement under and across a strip of land depicted as "Permanent Utility and Drainage Easement Property" on Exhibit A and with a legal description of the Permanent Utility and Drainage Easement Property attached to this Permanent Utility and Drainage Easement Agreement as Exhibit B (the "Permanent Utility and Drainage Easement Property") for (collectively the "Facilities "): (i) below - ground water, sanitary sewer, and water drainage lines and other below - ground city owned utilities; (ii) drain inlets and manholes in connection with, and as is necessary for, the Kimball Avenue road expansion project (the " Project"); and (iii) other below - ground franchise and below - ground public utilities, and in connection with which the parties are entering into this Permanent Utility and Drainage 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 Utility and Drainage Easement Property for the purpose of and with the right to construct, reconstruct, maintain, repair, and make connections to the Facilities. Grantor reserves the right to use the Permanent Utility and Drainage Easement Property for all purposes that are not inconsistent with the specific rights granted to Grantee under this Permanent Utility and Drainage 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 Utility and Drainage 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, fiber and communication 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 Project, and to cooperate with Grantor, Grantor's 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 Utility and Drainage Easement Property for landscaping, 1 32474.8 EXHIBIT 1 ami. signage, or lighting, other than grass cover on all parts of the Permanent Utility and Drainage Easement Property except that part on which are located above - ground facilities, without Grantee's written approval, which approval will not be unreasonably withheld, provided, however, that Grantor shall have the right to plant flowers and shrubs (but no trees) on the Permanent Utility and Drainage Easement Property. No later than the conclusion of the work on the Project, Grantee will cover with St. Augustine grass sod of a good quality all parts of the Permanent Utility and Drainage Easement Property except that part on which are located above - ground Facilities. Notwithstanding anything else in this Permanent Utility and Drainage Easement Agreement, Grantor shall have the right to pave (with concrete, asphalt, or other material), maintain, reconstruct, and repair the Permanent Utility and Drainage 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 Utility and Drainage 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 Utility and Drainage Easement Area. In the event Grantee's use of the Permanent Utility and Drainage Easement Area causes any damages to the Allowable Improvements, Grantee agrees to restore within a reasonable time, at Grantee's soles cost, the Allowable Improvements to their pre - damage condition. However, nothing contained in this Agreement shall constitute any required governmental approval of any contemplated improvements, including pavement, or otherwise relieve Grantor from complying with any applicable ordinances or obtaining any required permits and/or approvals prior to installation or construction of any proposed improvement, including paving, unless otherwise excused by the Settlement Agreement in Lieu of Condemnation between Grantor and Grantee or applicable law. As a material part of the consideration for this Permanent Utility and Drainage Easement Agreement, Grantee agrees that the use of the Permanent Utility and Drainage Easement Property by Grantee and by Grantee's successors and permitted assigns shall be restricted as follows: the Permanent Utility and Drainage Easement Property shall only be used for the Facilities. Grantor 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 Utility and Drainage Easement Property without the prior written consent of Grantor or Grantor's successor(s) in interest, which consent may be withheld for any reason whatsoever, subject to the conditions and exceptions set forth below. Grantor hereby consents to Grantee's agents, contractors, and franchise and public utility companies and their agents and contractors, performing work for Grantee on the Permanent Utility and Drainage Easement Property pursuant to the terms of this Permanent Utility and Drainage Easement Agreement. Grantee further may not assign or sell this Permanent Utility and Drainage Easement Agreement or any rights related to the Permanent Utility and Drainage Easement Property except as set out below 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 Utility and Drainage 2 32474.8 Easement Agreement. Notwithstanding any of the above, however, to the extent that city ordinance or other governmental law or regulation authorizes or permits the installation of underground franchise or other underground public utilities in city -owned utility easements, this provision shall not prohibit or bar such use. Also, nothing contained in this Agreement shall prohibit Grantee from assigning the Permanent Utility and Drainage Easement to another governmental unit or entity that assumes control of the adjacent right -of -way, including but not limited to Tarrant County and the Texas Department of Transportation. This Permanent Utility and Drainage 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 Utility and Drainage Easement Agreement is subject to: a) any and all of the following held or claimed by a governmental entity or utility provider, 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; 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 Utility and Drainage 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, provided, however to the extent that paving or landscaping existing as of the Effective Date overlaps or encroach upon the Permanent Utility and Drainage Easement Property, Grantee may demolish and remove such existing paving or landscaping, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Utility and Drainage Easement Agreement. 3 32474.8 2. The grant of rights under this Permanent Utility and Drainage Easement Agreement is subject to all visible encumbrances on, in, or affecting the Permanent Utility and Drainage Easement Property, Grantor's other property, or any part of any of the foregoing, provided, however that to the extent that paving or landscaping existing as of the Effective Date overlaps or encroach upon the Permanent Utility and Drainage Easement Property, Grantee may demolish and remove such existing paving or landscaping, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Utility and Drainage Easement Agreement. 3. Grantee shall be entitled to use the Permanent Utility and Drainage Easement Property solely for the purposes expressly set forth in this Permanent Utility and Drainage Easement Agreement and for no other purpose. Until a new driveway is constructed from Kimball Avenue across the Permanent Utility and Drainage Easement Property to Grantor's property at a location approved in writing by Grantor, which approval shall not be unreasonably withheld, Grantee shall not close or impede access to Grantor's property over and through the existing driveways from Kimball that crosses the Permanent Utility and Drainage Easement Property, provided, however, Grantee may temporarily close one of Grantor's existing driveways from Kimball Avenue 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 from Kimball to Grantor's property that is reasonably satisfactory to Grantor. During the Project, Grantee will: (i) provide continuous access from Grantor's property to Highland Street across the existing drive from Grantor's property to Highland Street or an alternative, temporary access drive from Grantor's property to Highland Street that is reasonably satisfactory to Grantor; ii) provide continuous access to Grantor's entrances to the buildings located on Grantor's property and/or iii) not impede Grantor's sidewalk on the east side of Grantor's property adjacent to Grantor's existing building. Grantee 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 Utility and Drainage 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 encumbrances (except to the extent that paving or landscaping existing as of the Effective Date overlaps or encroach upon the Permanent Utility and Drainage Easement Property in which case Grantee may demolish and remove such existing paving or landscaping, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Utility and Drainage Easement Agreement), that the Permanent Utility and Drainage Easement Property is adequate for Grantee's intended and actual use, and that Grantee's use of the Permanent Utility and Drainage 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 Utility and Drainage Easement Property so as to meet all regulatory requirements and shall complete all work in accordance with City of Southlake, Texas specifications, 4 32474.8 requirements, and 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 Utility and Drainage 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 Utility and Drainage Easement Property at the direction or request of Grantee. Further, Grantee shall require its general contractor to obtain adequate insurance covering personal injury, death, and property damage from his /its activities and the activities of its employees, subcontractors, consultants or other agents entering the Permanent Utility and Drainage Easement Property on the Permanent Utility and Drainage Easement Property. Such insurance will be the primary insurance coverage for any claims and Grantor's insurance, if any, shall be considered secondary insurance. 7. Grantee will maintain the Facilities in good condition in accordance with City of Southlake and any other applicable laws, ordinances, rules, and regulations. Upon completion of any construction, maintenance, repair, removal, replacement, reconstruction or other work on or in the Permanent Utility and Drainage Easement Property, Grantee shall promptly restore that part of the surface of the Permanent Utility and Drainage Easement Property that is not used for above - ground Facilities to a landscaped condition consistent with the Project. If any other portion of Grantor's property outside the Permanent Utility and Drainage 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. Grantor shall be entitled to receive from the City Secretary's office, upon request, copies of all as -built construction drawings for the Facilities to be located on the Permanent Utility and Drainage Easement Property at the later of 60 days after Grantee completes construction and any later reconstruction of the Facilities or 30 days after Grantee receives such drawings. 8. It is expressly understood and agreed that this Permanent Utility and Drainage Easement Agreement does not constitute a conveyance in fee of any part of the Permanent Utility and Drainage 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 Utility and Drainage Easement Property, which rights are expressly retained by Grantor, but only grants the non - exclusive easement rights specifically provided in this Permanent Utility and Drainage Easement Agreement; if the Permanent Utility and Drainage 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 Utility and Drainage Easement Property, but Grantor shall have the right 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') 5 32474.8 below the surface in a manner which does not enter upon, or interfere with Grantee's rights under this Permanent Utility and Drainage Easement Agreement. 9. Grantee shall not permit to be placed against the Permanent Utility and Drainage 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 Utility and Drainage Easement Property. GRANTEE AGREES, TO THE EXTENT PERMITTED BY LAW, 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 UTILITY AND DRAINAGE EASEMENT PROPERTY. THE INDEMNITY AND OTHER RIGHTS AFFORDED BY THIS SECTION SHALL SURVIVE THE TERMINATION AND EXPIRATION OF THIS PERMANENT UTILITY AND DRAINAGE EASEMENT AGREEMENT. 10. The rights granted under this Permanent Utility and Drainage Easement Agreement are granted until the Facilities or use of the Permanent Utility and Drainage Easement Property shall be Abandoned, and in that event such rights shall cease and all rights granted under this Permanent Utility and Drainage 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 Utility and Drainage Easement Property for the purpose herein granted, for a continuous period of five years and the Grantee agrees that it has no further intent to use the Permanent Utility and Drainage Easement Property for any of the permitted purposes. 11. No termination or expiration of the Permanent Utility and Drainage Easement Agreement shall release Grantee from any liability or obligation under this Permanent Utility and Drainage 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 Utility and Drainage 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 Utility and Drainage 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 such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Permanent Utility and Drainage Easement Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein, and the remaining provisions of this Permanent Utility and Drainage Easement Agreement will remain in effect. 14. This Permanent Utility and Drainage Easement Agreement is not valid or binding on 6 32474.8 any party unless executed by all of the parties listed below. This Permanent Utility and Drainage 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 Utility and Drainage Easement Agreement shall extend to and be binding upon Grantee and Grantor and their permitted successors and assigns, if any. 15. Grantee agrees and represents that: (i) this Permanent Utility and Drainage Easement Agreement is binding on Grantee 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 Utility and Drainage Easement Agreement, Grantee 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 UTILITY AND DRAINAGE 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, IFANY. 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, limitations, reservations, and exceptions contained in this Permanent Utility and Drainage Easement Agreement, until the Facilities or use of the Permanent Utility and Drainage Easement Property shall be Abandoned as provided in this Permanent Utility and Drainage Easement Agreement, and in that event said Permanent Utility and Drainage Easement Agreement shall cease, all rights herein granted shall terminate, and all rights to use the Permanent Utility and Drainage Easement Property shall automatically revert to Grantor or Grantor's heirs, successors, assigns and /or legal representatives. REMAINDER OF PAGE INTENTIONALLY BLANK 7 32474.8 EXECUTED to be effective as of May _, 2013. GRANTOR: GRANTEE: BRIAN JEFFREY MASSEY CITY OF SOUTHLAKE, TEXAS By: Brian Jeffrey Massey The Honorable John Terrell, Mayor 1200 North Kimball Avenue 1400 Main Street Southlake, Texas 76092 Southlake, Texas 76092 Attest: Alisha Richardson, City Secretary REMAINDER OF PAGE INTENTIONALLY BLANK 8 32474.8 ACKNOWLEDGMENTS STATE OF TEXAS § § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared BRIAN JEFFREY MASSEY, 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 day of May, 2013. Notary Public in and for The State of Texas My Commission Expires: Typed or Printed Name of Notary STATE OF TEXAS § § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared the Honorable JOHN TERRELL, Mayor of the City of Southlake, 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, and in the capacity therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of May, 2013. Notary Public in and for The State of Texas My Commission Expires: Typed or Printed Name of Notary 9 32474.8 Exhibit "A" Survey of Permanent Utility and Drainage Easement Property 10 32474.8 0 • RICHARD NOLUDAY AND WIFE. MARY ANN NOWOAY '•'r VOL 14325, PG. 524, D.R.T.C.T. POINT OF BEGINNING D NORTHWEST CORNER 1 /r' IRON ROD SET y MASSEY TRACT "PK" NNl FOUND CO ! - _ TUMBLEWEED S 89 °45'37 "E TRAIL 10.00' N 89.45'37' w 4 49.42' PERMANENT UTILITY, DRAINAGE 1 moaci a rev AND WALL EASEMENT ', I m T -WAY 0.111 ACRE / 4,830 SO.FT. LINE io at JEFF MASSEY o VOL. 16881, PG. 198 r I 1 D.R.T.C.T. -r 1 LOT J. THE FILL ADDITION G VOL. 388 - 159. PG. 96 1M P.R.T.C.T, i - Pr) _ RA ` _ _ 7! Z CRIPPLE CREEK o ° LANE `�' 0 0 r - - or new I y RICKY -OF -WAY UNE S 45°00'00 "W f 1 1 /rm 1 13.94' I _ _ - 1 /i" IRS SURVEY UNE CENTERLINE ROAD - - - - - - - •PK" NAIL FOUND - - - - - - SOUTHEAST CORNER "PK" NAB FOUND IN � 1 OF MASSEY TRACT CENTERLINE OF ROAD !ft 1 �u 1 /,/÷0.4)1*47 r = t 1 S' / yo 1 �r, W PROPERTY CORNER NOTE SCALE 1"= 100' ALL PROPERTY CORNERS SET ARf 1 /2• IRON ROO5 (1/2" IRS) WITH CAP MARKED "9RITTAIa & CRAWFORD" I S OF SOUTHLAKS E . 1400 MAIN STREET, SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET EXHIBIT "8" Bst1'reIN &Ciuw,oRD PERMANENT UTILITY, DRAINAGE , _ I-- we Y • AND WALL EASEMENT ` r e Co S/ 0 .111 ACRE OF LAND yin' ISO] str�++ -11111A/011101 .rH H - JAMES . ' Ag rniii : INN Ns 0171 Ira-4W LOCATED IN THE !C Ct ..e. s e.a... a,,, Kam Kn. • v - �,, ,, -�itl'� k�_.,• W >a> sorn. ,«„ >0 to FRANCIS 1HROOP SURVEY '.'yd's+!" . 0.1..' ° O "'"'""' ABSTRACT No. 1511 . Su + � SOUTHLAKE, TARRANT COUNTY. TEXAS JULY 6, 2010 sap4Qt Exhibit "B" Legal Description of Permanent Utility and Drainage Easement Property 11 32474.8 • • EXHIBIT "A" LEGAL DESCRIPTION PERMANENT UTILITY, DRAINAGE AND WALL EASEMENT NORTH KIMBALL AVENUE PARCEL 15 BEING 0.111 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 Jeff Massey, by the deed recorded in Volume 16881, Page 198, of the Deed Records of Tarrant County, Texas Said 0.111 acre of and being more particularly described by metes and bounds as follows: BEGINNING at a W iron rod marked "Brittain & Crawford" set in the North boundary line of said Massey Tract, and lying N 89° 45' 37' W 49.42 feet. from a "PK' nail found marking the Northeast corner of said Massey Tract. Said Point of Beginning also tying in the new West right -of -way line of North Kimball Avenue: THENCE S 00' 49' 31" E 478.08 feet, along the new West right -of -way line of said North Kimball Avenue, to a W iron rod marked 'Brittain & Crawford', set; THENCE S 45° 00' 00" W 13.94 feet, to a point; THENCE N 00' 49' 31' W 487.98 feet, to a point in the North boundary line of said Massey Tract: THENCE S 89° 45' 37" E 10.00 feet, along the North boundary line of said Massey Tract, to the POINT OF BEGINNING, containing 0.111 acre (4.830 square feet) of land. g- 2cc9'Jaga+s as- legsmiii9 -iss EXHIBIT Exhibit "C" Exceptions To Title From Title Commitment 12 32474.8 SCHEDULE B EXCEPTIONS FROM COVERAGE GF Number. 09 -04451 In addition to the Exclusions and Conditions and Stipulations, your Policy will not cover loss, costs, attorney's fees, and expenses resulting from: 1. The following restrictive covenants of record itemized below (We must either insert specific recording data or delete this exception): In policy to be issued, Item No. 1 will be deleted. 2. Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements. .) 4. Any titles or rights asserted by anyone, including, but not limited to, persons, the public, corporations, governments or other entitles, 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. •. • VI _1- 1; -' 1 - 11 • 1 e •• 1 r - ••• • • rr . • • 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.): (09 -04451 PFD/09- 04451/30) FORM T -7: Commitment for Tide Insurance (Schedule RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS EXHIBIT SCHEDULE B (Continued) GF Number. 09 -04451 a. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the title that would be disclosed by an accurate and complete land survey of the land. (Note: Upon receipt of a survey acceptable to Company, this exception will be deleted. Company reserves the right to add additional exceptions per its examination of said survey.) b. Easement for right - of-way recorded in Volume 2063, Page 351, Deed Records of Tarrant County, Texas. c. Easement for right- of-way recorded in Volume 2063, Page 353, Deed Records of Tarrant County, Texas. d. Easement for right -of -way granted to TEXAS POWER & LIGHT COMPANY by instrument recorded in Volume 8220, Page 437, Deed Records of Tarrant County, Texas. -- - - - - -- -- . 0203276040, Dccd Records of Torrent County, Tcxcs. ' � ■ tt as It e i _ • 5 V Y 9 .' 1. A i •i � • • • i l • i v �.! - 1 -i -• ,. r. . • a - - • ,i e'.11 - - - - ■ • s - - _ _ _ _ t. g. Terms, conditions, and stipulations contained, in lease agreement between Jeff Massey and wife, Jodie Lynn Massey, as Lessor, and New CingularWireless PCS, LLC, as Lessee, a Memorandum of which is filed for record under Clerk's File No. 0292219369, Deed Records of Tarrant County, Texas. FORM T-7: Commitment for Title Insurance (Schedule (09-04451.PFD /09- 04451/30) F) RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS EXHIBIT a r t-t SETTLEMENT AGREEMENT EXHIBIT 11 EXHIBIT "A" LEGAL DESCRIPTION PERMANENT WALL EASEMENT NORTH KIMBALL AVENUE PARCEL 15 BEING 0.028 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 Jeff Massey, by the deed recorded in Volume 16881, Page 198, of the Deed Records of Tarrant County, Texas. Said 0.028 acre of land being more particularly described by metes and bounds as follows: BEGINNING at a point in the new West right -of -way line of North Kimball Avenue, and lying N 89° 45' 37" W 49.42 feet, and S 00°49'31"E 92.80 feet, from a "PK" nail found marking the Northeast corner of said Massey Tract. Said Point of Beginning also lying in the new West right -of -way line of North Kimball Avenue; THENCE S 00° 49' 31" E 300.00 feet, along the new West right -of -way line of said North Kimball Avenue, to a point; THENCE S 89° 10' 29" W 3,00 feet, to a point: THENCE N 00° 49' 31" W 275.00 feet, along a line 3 feet West of and parallel to the new West right -of -way line of said North Kimball Avenue, to a point; THENCE S 89° 10' 29" W 7.00 feet. to a point; THENCE N 00° 49' 31" W 25.00 feet, along a line 10 feet West of and parallel to the new West right -of -way line of said North Kimball Avenue, to a point; THENCE N 89° 10' 29" E 10.00 feet, to the POINT OF BEGINNING, containing 0.028 acre (1,075 square feet) of land. 9,201 0Uegalslkimball- tegalsiESW 158 flIBITJ SETTLEMENT AGREEMENT EXHIBIT I 1 w RICHARD HOLUDAY AND WIFE, MARY ANN HOWDAY VOL. 14325, PG. 524, D.R.T.C.T. = I iI 1 i ORTHWEST CORNER N MASSEY TRACT "PK" NNL FOUND (. 1/ 2" IRON ROD SET _ TUMBLEWEED 4. _ _ _ _ _ w TRAIL G ay I "' °p � N 89°45'37"W ' 49.42' N 89 ° 10'29 "E 10.00 0 1 N 00°49'31"W 25.00' 't0 POINT I BEGINNING S 89 °10'29 "W 7.00' JEFF MASSEY RIG T F — WA " Y E VOL. 16881, PG. 198 I D.R.T.C.T. I LOT 3, THE HILL ADDITION VOL. 388 -159, PG. 96 I b P.R.T.C.T. f PERMANENT WALL I EASEMENT 3 2 1 _ _ _ 10.025 ACRE / 1075 SQ.FT. 1 4 1 Yg CRIPPLE CREEK ib t `yam 0 CN - 0, - - K ac O a e v g ' i Z o 1 Z NEW 1 ..� 1 RIGHT —OF —WAY UNE S 89 °10'29 "W 3.00' 1/2" IRS I — — — - ._._..___�._--- --- -- - - -- 1/" IRS - - --- SURVEY UNE CENTERLINE ROAD — — — — — — "PK" NAIL FOUND — — � _ — _ — SOUTHEAST CORNER "PK" NAIL FOUND IN _ � I OF MASSEY TRACT CENTERLINE OF ROAD I 1 �o� I 1� 1 c.,. y J , 4 PROPERTY CORNER NOTE SCALE 1 �'a 100, ALL PROPERTY CORNERS SET ARE 1/2" IRON RODS (1/2" IRS) WITH CAP MARKED "BRITTNN & CRAWFORD" C O 1 1400 MAIN STREET, SOUTHLAKE , TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET EXHIBIT "B" .. BRrrrux ae: CRAWFORD �..� LAND SURVEYING & PERMANENT WALL EASEMENT , f 4 ' ¢ *!`''-: '`. TOPOGRAPHIC MAPPING - - J/WE5 �4 _BRfl' 0025 ACRE OF LAND z — W w :> FAX t . ( ana u,» us a " ": LOCATED IN THE `% . ` F K w.. a,» .1-.,n P.O. SOX , " " IAS 71"" " o �""" FRANCIS THROOP SURVEY . , su Far • .oRIM. icx.s » EMAIL ABSTRACT No. 1511 ale s % SOUTHLAKE. TARRANT COU REVI SEED D M AY 1 100 20NTY. TEXAS NV, 20 13 \ICR RALLVE3 -15\ MAY SETTLEMENT AGREEMENT EXHIBIT J NON - EXCLUSIVE RETAINING WALL EASEMENT AGREEMENT IN SETTLEMENT OF CONDEMNATION STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TARRANT § Effective as of May , 2013 (the "Effective Date ") that Brian Jeffrey Massey a/k/a/ Jeff Massey, whose mailing address is 1200 Kimball Avenue, Southlake, TX 76092, 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 Retaining Wall Easement Agreement In Settlement Of Condemnation (the "Permanent Retaining Wall Easement Agreement ") has granted, and by these presents does grant unto said Grantee a non - exclusive retaining wall easement under and across a strip of land depicted as "Permanent Retaining Wall Easement Property" on Exhibit A and with a legal description of the Permanent Retaining Wall Easement Property attached to this Permanent Retaining Wall Easement Agreement as Exhibit B (the "Permanent Retaining Wall Easement Property ") for a retaining wall and related soil grading and a surface concrete drainage flume to drain water from Grantor's property (the "Facilities ") in connection with, and as is necessary for, the Kimball Avenue road expansion project (the "Project "); pursuant to the terms and conditions set forth below: Together with the right of ingress and egress along and upon the Permanent Retaining Wall Easement Property for the purpose of and with the right to construct, reconstruct, maintain, repair, and make connections to the Facilities. Grantor reserves the right to use the Permanent Retaining Wall Easement Property for all purposes that are not inconsistent with the specific rights granted to Grantee under this Permanent Retaining Wall 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 Retaining Wall Easement Property (to the extent not used by Grantee for above - ground Facilities) for underground telephone cables and conduits, fiber and communication 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 Facilities in accordance with the plans for the currently planned improvements for the Project, and to cooperate with Grantor, Grantor's 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 Retaining Wall Easement Property for landscaping, signage, or lighting, other than grass cover on all parts of the Permanent Retaining Wall Easement Property except that part on which are located above - ground facilities, without Grantee's written approval, which approval will not be unreasonably withheld, provided, however, that Grantor shall have the right to plant flowers and shrubs (but no trees) on the Permanent Retaining Wall Easement 1 33215.4 EXHIBIT I r Property. No later than the conclusion of the work on the Project, Grantee will cover with St. Augustine grass sod of a good quality all parts of the Permanent Retaining Wall Easement Property except that part on which is located above - ground Facilities. In the event Grantee's use of the Permanent Retaining Wall Easement Area causes any damages to the Allowable Improvements, Grantee agrees to restore within a reasonable time, at Grantee's soles cost, the Allowable Improvements to their pre - damage condition. However, nothing contained in this Agreement shall constitute any required governmental approval of any contemplated improvements, including pavement, or otherwise relieve Grantor from complying with any applicable ordinances or obtaining any required permits and/or approvals prior to installation or construction of any proposed improvement unless otherwise excused by the Settlement Agreement in Lieu of Condemnation between Grantor and Grantee or applicable law. As a material part of the consideration for this Permanent Retaining Wall Easement Agreement, Grantee agrees that the use of the Permanent Retaining Wall Easement Property by Grantee and by Grantee's successors and permitted assigns shall be restricted as follows: the Permanent Retaining Wall Easement Property shall only be used for the Facilities. Grantor 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 Retaining Wall Easement Property without the prior written consent of Grantor or Grantor's successor(s) in interest, which consent may be withheld for any reason whatsoever, subject to the conditions and exceptions set forth below. Grantor hereby consents to Grantee's agents and contractors performing work for Grantee on the Permanent Retaining Wall Easement Property pursuant to the terms of this Permanent Retaining Wall Easement Agreement. Grantee further may not assign or sell this Permanent Retaining Wall Easement Agreement or any rights related to the Permanent Retaining Wall Easement Property except as set out below 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 Retaining Wall Easement Agreement. Also, nothing contained in this Agreement shall prohibit Grantee from assigning the Permanent Retaining Wall Easement to another governmental unit or entity that assumes control of the adjacent right -of -way, including but not limited to Tarrant County and the Texas Department of Transportation. This Permanent Retaining Wall 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 Retaining Wall Easement Agreement is subject to: a) any and all of the following held or claimed by a governmental entity or 2 33215.4 utility provider, 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; 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 Retaining Wall Easement Property, Grantor's other property, or any part of any of the foregoing; g) any discrepancies, conflicts, or shortages in area or boundary lines; and h) any encroachments or overlapping of improvements, provided, however to the extent that paving or landscaping existing as of the Effective Date overlaps or encroach upon the Permanent Retaining Wall Easement Property, Grantee may demolish and remove such existing paving or landscaping, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Retaining Wall Easement Agreement. 2. The grant of rights under this Permanent Retaining Wall Easement Agreement is subject to all visible encumbrances on, in, or affecting the Permanent Retaining Wall Easement Property, Grantor's other property, or any part of any of the foregoing, provided, however that to the extent that paving or landscaping existing as of the Effective Date overlaps or encroach upon the Permanent Retaining Wall Easement Property, Grantee may demolish and remove such existing paving or landscaping, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Retaining Wall Easement Agreement. 3. Grantee shall be entitled to use the Permanent Retaining Wall Easement Property solely for the purposes expressly set forth in this Permanent Retaining Wall Easement Agreement and for no other purpose. Until a new driveway is constructed from Kimball Avenue across the Permanent Retaining Wall Easement Property to Grantor's property at a location approved in writing by Grantor, which approval shall not be unreasonably withheld, Grantee shall not close or impede access to Grantor's property over and through the existing driveways from Kimball that crosses the Permanent Retaining Wall Easement Property, provided, however, Grantee may temporarily close one of Grantor's existing driveways from Kimball Avenue 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 from Kimball to Grantor's property that 3 33215.4 is reasonably satisfactory to Grantor. During the Project, Grantee will: (i) provide continuous access from Grantor's property to Highland Street across the existing drive from Grantor's property to Highland Street or an alternative, temporary access drive from Grantor's property to Highland Street that is reasonably satisfactory to Grantor; ii) provide continuous access to Grantor's entrances to the buildings located on Grantor's property and/or iii) not impede Grantor's sidewalk on the east side of Grantor's property adjacent to Grantor's existing building. Grantee 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 Retaining Wall 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 encumbrances (except to the extent that paving, driveway, or landscaping existing as of the Effective Date overlaps or encroach upon the Permanent Retaining Wall Easement Property in which case Grantee may demolish and remove such existing paving, driveway, or landscaping, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Retaining Wall Easement Agreement), that the Permanent Retaining Wall Easement Property is adequate for Grantee's intended and actual use, and that Grantee's use of the Permanent Retaining Wall 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 Retaining Wall Easement Property so as to meet all regulatory requirements and shall complete all work in accordance with City of Southlake, Texas specifications, requirements, and contracts. Grantee shall construct, 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 Retaining Wall 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 Retaining Wall Easement Property at the direction or request of Grantee. Further, Grantee shall require its general contractor to obtain adequate insurance covering personal injury, death, and property damage from his /its activities and the activities of its employees, subcontractors, consultants or other agents entering the Permanent Retaining Wall Easement Property on the Permanent Retaining Wall Easement Property. Such insurance will be the primary insurance coverage for any claims and Grantor's insurance, if any, shall be considered secondary insurance. 7. Grantee will maintain the Facilities in good condition in accordance with City of Southlake and any other applicable laws, ordinances, rules, and regulations. Upon completion of any 4 33215.4 construction, maintenance, repair, removal, replacement, reconstruction or other work on or in the Permanent Retaining Wall Easement Property, Grantee shall promptly restore that part of the surface of the Permanent Retaining Wall Easement Property that is not used for above - ground Facilities to a landscaped condition consistent with the Project. If any other portion of Grantor's property outside the Permanent Retaining Wall 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. Grantor shall be entitled to receive from the City Secretary's office, upon request, copies of all as -built construction drawings for the Facilities to be located on the Permanent Retaining Wall Easement Property at the later of 60 days after Grantee completes construction and any later reconstruction of the Facilities or 30 days after Grantee receives such drawings. 8. It is expressly understood and agreed that this Permanent Retaining Wall Easement Agreement does not constitute a conveyance in fee of any part of the Permanent Retaining Wall 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 Retaining Wall Easement Property, which rights are expressly retained by Grantor, but only grants the non - exclusive easement rights specifically provided in this Permanent Retaining Wall Easement Agreement; if the Permanent Retaining Wall 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 Retaining Wall Easement Property, but Grantor shall have the right 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 Retaining Wall Easement Agreement. 9. Grantee shall not permit to be placed against the Permanent Retaining Wall 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 Retaining Wall Easement Property. GRANTEE AGREES, TO THE EXTENT PERMITTED BY LAW, 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 RETAINING WALL EASEMENT PROPERTY. THE INDEMNITY AND OTHER RIGHTS AFFORDED BY THIS SECTION SHALL SURVIVE THE TERMINATION AND EXPIRATION OF THIS PERMANENT RETAINING WALL EASEMENT AGREEMENT. 10. The rights granted under this Permanent Retaining Wall Easement Agreement are granted until the Facilities or use of the Permanent Retaining Wall Easement Property shall be Abandoned, and in that event such rights shall cease and all rights granted under this Permanent Retaining Wall 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 5 33215.4 defined as the non -use of the Facilities or the Permanent Retaining Wall Easement Property for the purpose herein granted, for a continuous period of five years and the Grantee agrees that it has no further intent to use the Permanent Retaining Wall Easement Property for any of the permitted purposes. 11. No termination or expiration of the Permanent Retaining Wall Easement Agreement shall release Grantee from any liability or obligation under this Permanent Retaining Wall 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 Retaining Wall 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 Retaining Wall 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 such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Permanent Retaining Wall Easement Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein, and the remaining provisions of this Permanent Retaining Wall Easement Agreement will remain in effect. 14. This Permanent Retaining Wall Easement Agreement is not valid or binding on any party unless executed by all of the parties listed below. This Permanent Retaining Wall 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 Retaining Wall Easement Agreement shall extend to and be binding upon Grantee and Grantor and their permitted successors and assigns, if any. 15. Grantee agrees and represents that: (i) this Permanent Retaining Wall Easement Agreement is binding on Grantee 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 Retaining Wall Easement Agreement, Grantee 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 RETAINING WALL 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 6 33215.4 AGREEMENT OF THE PARTIES THAT THERE ARE NO REPRESENTATIONS OR EXPRESS OR IMPLIED WARRANTIES EXCEPT AS EXPRESSLY PROVIDED HEREIN, IFANY. 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, limitations, reservations, and exceptions contained in this Permanent Retaining Wall Easement Agreement, until the Facilities or use of the Permanent Retaining Wall Easement Property shall be Abandoned as provided in this Permanent Retaining Wall Easement Agreement, and in that event said Permanent Retaining Wall Easement Agreement shall cease, all rights herein granted shall terminate, and all rights to use the Permanent Retaining Wall Easement Property shall automatically revert to Grantor or Grantor's heirs, successors, assigns and /or legal representatives. EXECUTED to be effective as of May _ , 2013. GRANTOR: GRANTEE: BRIAN JEFFREY MASSEY CITY OF SOUTHLAKE, TEXAS By: Brian Jeffrey Massey The Honorable John Terrell, Mayor 1200 North Kimball Avenue 1400 Main Street Southlake, Texas 76092 Southlake, Texas 76092 Attest: Alisha Richardson, City Secretary REMAINDER OF PAGE INTENTIONALLY BLANK 7 33215.4 ACKNOWLEDGMENTS STATE OF TEXAS § § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared BRIAN JEFFREY MASSEY, 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 day of May, 2013. Notary Public in and for The State of Texas My Commission Expires: Typed or Printed Name of Notary STATE OF TEXAS § § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared the Honorable JOHN TERRELL, Mayor of the City of Southlake, 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, and in the capacity therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of May, 2013. Notary Public in and for The State of Texas My Commission Expires: Typed or Printed Name of Notary 8 33215 Exhibit "A" Survey of Permanent Retaining Wall Easement Property 9 33215.4 RICHARD HOLUDAY AND WIFE, MARY ANN HOLLIDAY w VOL. 14325, PG. 524, D.R.T.C.T. I k' ' I > ORTHWEST CORNER TRACT co "PK" MASSEY FOUND 1/2" IRON ROD SET - - 0 _ TUMBLEWEED -Z# -- - TRAIL Ci`" 1 M W� N 89 °45'37"W N 89 °10 "E 10.00 o W I 49.42' N 00 °49'31 "W 25.00' .60 POINT I BEGINNING li S 89 °10'29 "W 7.00' PROPOSED NEW JEFF MASSEY RIGHT-OF-WAY VOL. 16881, PG. 198 1 D.R.T.C.T. I LOT 3, THE HILL ADDf RON VOL 388 -159, PG. 96 0 P.R.T.C.T. 3 I O PERMANENT WALL _ 0.025 ACRE / 1075 SQ.FT. M 6 1 - p CRIPPLE CREEK ,� ''� o h C LANE G � 4 O `er "it I fi r- -- — — If I Z ,o IZ I 04. NEW cn 1 RIGHT -OF -WAY NE S 89 °10'29 "W I 3.00' 1 /2" IRS - -- '" 1 / IRS SURVEY UNE CENTERUNE ROAD II - - - - " "PK" NAIL FOUND _ _ - - "PK" NAIL FOUND IN - _ - SOUTHEAST CORNER I OF MASSEY TRACT CENTERLINE OF ROAD I 1 5?o.�'L 1 i � iy 4 1. s c i S ■ff .C...S.P. PROPERTY CORNER NOTE SCALE 1"= 100' ALL PROPERTY CORNERS SET ARE 1/2" IRON RODS (1/2" IRS) WITH CAP MARKED "BRITAIN & CRAWFORD" r•• S CITY OF SOUTHLAKE 1 400 MAIN STREET, SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET EXHIBIT "B" -no/Pc' B" - ` m f Barn CRAWFORD 1 1 , ., E4CC & LAND SURVEYING & PERMANENT WA o EASEMENT L . , x ~ / 7) Iz.- el1 - K„a a17) n. -ell: 0.025 ACRE - 1674 �.. fs1 W FAX ri . (am .,� �� � � I 'TH)Ep� /may ' s b P.O. D W r ° MO W fWs i 10 MOW' f RANCIS TnROO SURVEY - `sUR r F7 I.pgTM. TEX# 711 nwa:.a .l.- el..bl Loom ABSTRACT No. 1511 .Moan SOUTHLAKE, TARRANT COUNTY. TEXAS NOVEMB M' Y 2.2011 Vauew. s -IS\ REVISIT MAY 10, 2013 Exhibit "B" Legal Description of Permanent Retaining Wall Easement Property 10 33215.4 EXHIBIT "A" LEGAL DESCRIPTION PERMANENT WALL EASEMENT NORTH KIMBALL AVENUE PARCEL 15 BEING 0.028 acre of and located in the FRANCIS THROOP SURVEY, ABSTRACT No. 1511, Southlake, Tarrant County, Texas, and being a portion of a tract of land conveyed to Jeff Massey, by the deed recorded in Volume 16881, Page 198, of the Deed Records of Tarrant County, Texas. Said 0.028 acre of land being more particularly described by metes and bounds as follows: BEGINNING at a point in the new West right -of -way line of North Kimball Avenue, and Tying N 89° 45' 37" W 49.42 feet, and S 00 °49'31 "E 92.80 feet, from a "PK" nail found marking the Northeast comer of said Massey Tract. Said Point of Beginning also tying in the new West right -of -way line of North Kimball Avenue; THENCE S 00° 49' 31" E 300.00 feet, along the new West right -of -way line of said North Kimball Avenue, to a point THENCE S 89" 10' 29" W 3.00 feet, to a point; THENCE N 00° 49' 31" W 275.00 feet, along a line 3 feet West of and parallel to the new West right -of -way line of said North Kimball Avenue, to a point; THENCE S 89° 10' 29" W 7.00 feet, to a point; THENCE N 00° 49' 31" W 25.00 feet, along a line 10 feet West of and parallel to the new West right -of -way line of said North Kimball Avenue, to a point; THENCE N 89" 10' 29" E 10.00 feet, to the POINT OF BEGINNING, containing 0.028 acre (1,075 square feet) of land. g:201 OVegalsVdmbe ll- Iegais\ESW 158 EXHIBIT T Exhibit "C" Exceptions To Title From Title Commitment 11 33215.4 SCHEDULE B EXCEPTIONS FROM COVERAGE GF Number: 09 -04451 In addition to the Exclusions and Conditions and Stipulations, your Policy will not cover loss, costs, attorney's fees, and expenses resulting from: 1. The following restrictive covenants of record itemized below (We must either insert specific recording data or delete this exception): In policy to be issued, Item No. 1 will be deleted. 2. Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements. ) 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 tow 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. S. Liens and Teases that afrvul tl is title to thu iae id, but dial. atv rate tv the lien of - the - irrsured 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.): (09- 04451.PFD /09- 04451130) FORM T-7: Commitment for Title Insurance (Schedule t2ATTIKIN TITLE COMPANY, FORT WORTH, TEXAS E) EXHIBIT SCHEDULE B (Continued) GF Number. 09 -04451 a Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the title that would be disclosed by an accurate and complete land survey of the land. (Note: Upon receipt of a survey acceptable to Company, this exception will be deleted. Company reserves the right to add additional exceptions per its examination of said survey.) b. Easement for right - of-way recorded in Volume 2063, Page 351, Deed Records of Tarrant County, Texas. c. Easement for right- of-way recorded in Volume 2063, Page 353, Deed Records of Tarrant County, Texas. d. Easement for right-of-way granted to TEXAS POWER & LIGHT COMPANY by instrument recorded in Volume 8220, Page 437, Deed Records of Tarrant County, Texas. • , D208275040, Dccd Rccords of Tarrant County, Tcxos. • rr - - - - • - - • •. ... a _ _ _ _ -Merfioremitif t. g. Terms, conditions, and stipulations contained in lease agreement between Jeff Massey and wife, Jodie Lynn Massey, as Lessor, and New Cingular Wireless PCS, LLC, as Lessee, a Memorandum of which is filed for record under Clerk's File No. D212219369, Deed Records of Tarrant County, Texas. FORM T-7: Commitmettt for Tide Insurance {Schedule (09.04451. AFDN09- 04451!30) FORM TITLE COMPANY, FORT WORM, TEXAS EXHIBIT rA SETTLEMENT AGREEMENT EXHIBIT K TEMPORARY CONSTRUCTION EASEMENT IN SETTLEMENT OF CONDEMNATION THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS COUNTY OF TARRANT § Effective as of July 5, 2013 (the "Effective Date ") that Brian Jeffrey Massey a/k/a/ Jeff Massey, whose mailing address is 1200 Kimball Avenue, Southlake, TX 76092, 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," pursuant to this Temporary Construction Easement Agreement in Settlement of Condemnation (the "Temporary Easement Agreement ") does hereby grant unto Grantee a temporary, nonexclusive easement ( "Temporary Easement ") over the surface of the land with the legal description in Exhibit "A" and shown on Exhibit "B" as the Temporary Construction Easement Area (the "Temporary Easement Area "), such Temporary Easement Area to be utilized solely to accommodate movement of equipment and materials and general construction activities in connection with the Kimball Avenue road expansion project (the "Project "), but only as may be necessary for such Project and only pursuant to the terms and conditions set forth below. This temporary construction easement grant is made by Grantor and accepted by Grantee subject to the following exceptions, reservations, restrictions, conditions and provisions: 1. The Temporary Easement is subject to all encumbrances, conditions, covenants, restrictions, reservations, exceptions, rights of way, and easements affecting the Temporary Easement Area or any part thereof, including building and zoning ordinances, all laws, regulations and restrictions, and restrictions by municipal or other governmental authorities applicable to and enforceable against the Temporary Easement Area. 2. The Temporary Easement is subject to all visible encumbrances on, in, or affecting the Temporary Easement Area. 3. Grantee, its agents, contractors, and subcontractors shall be entitled to use said Temporary Easement Area solely to accommodate movement of equipment and materials and general construction activities in connection with the Project, and only as may be necessary for such Project and in accordance with the terms and conditions of this Temporary Easement Agreement, subject to the termination provision, provided however, the portion of the Temporary Easement Area exceeding fifteen (15) feet in width and granted for purposes of the construction of a new driveway and drive (the "New Driveway ") for Grantor pursuant to Paragraph 6.010 of the Settlement Agreement in Lieu of Condemnation (the "Settlement Agreement ") shall only be used for purposes of Grantee complying with its obligations under Paragraph 6.010 of the Settlement Agreement. EXHIBIT 1 1 K 32475.8 4. Grantee's use of the Temporary Easement Area will be strictly limited to the use of the surface of the Temporary Easement Area only, and will be further limited as follows: a) Until a new driveway is constructed across the Temporary Easement Area at a location approved in writing by Grantor, Grantee shall not close or impede access to Grantor's property over and through the existing driveways from Kimball Avenue that cross the Temporary Easement Area, provided, however, Grantee may temporarily close one of Grantor's existing driveways from Kimball Avenue if: i) it is necessary and unavoidable for utility installation, relocation or other construction activities in connection with the Project; and ii) Grantee provides Grantor with an alternative, temporary access drive to Grantor's property from Kimball Avenue that is reasonably satisfactory to Grantor. b) While this Temporary Easement Agreement is in effect and during the Project, Grantee will: (i) provide continuous access from Grantor's property to Highland Street across the existing drive from Grantor's property to Highland Street or an alternative, temporary access drive from Grantor's property to Highland Street that is reasonably satisfactory to Grantor; ii) provide continuous access to Grantor's entrances to the buildings located on Grantor's property and/or iii) not impede Grantor's sidewalk on the east side of Grantor's property adjacent to Grantor's existing building. c) Grantee 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 Temporary Easement Area. 5. It shall be Grantee's sole responsibility to ensure that Grantee's use of the Temporary Easement Area is adequate for Grantee's intended and actual use, and that Grantee's use of the Temporary Easement Area complies with all state, federal, and local requirements. Grantee hereby agrees to obtain, and require its contractors, agents and employees to obtain, all required permits and governmental approvals for their activity so as to meet all regulatory requirements and shall complete all work in a good and workmanlike manner. No later than thirty (30) days after the Effective Date, Grantee will install a temporary construction fence on the eastern boundary of the Temporary Easement Area and will maintain such temporary construction fence in good condition. No later than thirty (30) days after the earlier of (i) the termination or expiration of this Temporary Easement Agreement or (ii) the date on which Grantee's use of the Temporary Easement Area is completed, Grantee will remove the temporary construction fence and shall cover any unimproved areas of the Temporary Easement Area with St. Augustine grass sod of a good quality and shall repair any damage to the sidewalk or other improvements located in the Temporary Easement Area. Grantee shall, in all activities undertaken pursuant to this Temporary Easement Agreement, comply and require its contractors, agents and employees to comply with all federal, state and local laws, statutes, orders, ordinances, rules, regulations, plans, policies and decrees. 2 32475.8 6. It is understood and agreed that this Temporary Easement grant is not a conveyance of any land in the Temporary Easement Area but is a grant solely of the temporary non - exclusive working space easement described herein. Without limitation, Grantor and Grantor's heirs, successors, and assigns forever, reserve all water, oil, gas, hydrocarbons, and other minerals in and under and that may be produced from the Temporary Easement Area (the "Temporary Easement Property Reserved Estate "); provided, however, that Grantor for the period of the Temporary Easement Agreement and any extension of the Temporary Easement Agreement shall not 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 Temporary Easement Area, but during such period Grantor shall have the right 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 of the Temporary Easement Area in a manner which does not enter upon, or interfere with the occupancy, use or enjoyment of the surface of the Temporary Easement Area by Grantee, its successors and assigns pursuant to the terms of this Temporary Easement Agreement. This limitation on the Temporary Easement Area and/or the Temporary Easement Property Reserved Estate will terminate and be of no further force or effect when this Temporary Easement Agreement terminates or expires. 7. Grantee shall not permit to be placed against the Temporary Easement Area, or any part thereof, any design professionals', mechanics', materialmen's, contractors' or subcontractors' liens with regard to Grantee's actions and activities upon the Temporary Easement Area. GRANTEE AGREES, TO THE EXTENT PERMITTED BY LAW, 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 TEMPORARY EASEMENT AREA. THE INDEMNITY AND OTHER RIGHTS AFFORDED BY THIS SECTION SHALL SURVIVE THE TERMINATION AND EXPIRATION OF THIS TEMPORARY EASEMENT AGREEMENT. 8. Grantor, Grantor's successors and assigns, and the tenants, invitees, and guests of any of the foregoing, shall have the right to use the Temporary Easement Area for any purpose or purposes whatsoever, provided that such use does not unreasonably interfere with or obstruct the use of the Temporary Easement Area by Grantee for the purposes specified and on the terms contained in this Temporary Easement Agreement. 9. Upon the termination, expiration, or revocation of this Temporary Easement Agreement, Grantee shall, at its own and sole cost and expense, restore the Temporary Easement Area to the same or better condition in which it was prior to Grantee's use, with the exception of the portion of the Temporary Easement Area upon which Grantee will construct the New Driveway pursuant to Paragraph 6.010 of the Settlement Agreement. In case Grantee shall fail to restore Grantor's property to its prior condition within a reasonable time after the effective date of the termination, expiration, or revocation, then Grantor may proceed with such work at the expense of Grantee. 3 32475.8 10. No termination or expiration of the Temporary Easement Agreement shall release Grantee from any liability or obligation under this Temporary Easement Agreement, except that in the event of such termination or expiration, Grantee's obligation to construct the New Driveway shall be conditioned upon Grantor agreeing to and extend the Temporary Easement Agreement at no cost to Grantor in accordance with Paragraph 16 below. This provision will not affect Grantee's right to extend the Temporary Easement Agreement for a portion of the Temporary Easement Area in accordance with Paragraph 15 below. 11. In the event of a dispute between the parties with respect to the terms, conditions, rights, or obligation of or under this Temporary Easement Agreement, the prevailing party shall be entitled to collect from the other party its reasonable attorneys' fees. 12. This Temporary Easement Agreement is not valid or binding on any party unless executed and /or authorized by all of the parties listed below. This Temporary 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. 13. Grantee shall obtain, and shall require the general contractor entering the Temporary Easement Area to obtain adequate insurance covering personal injury, death, and property damage from his /its activities and the activities of its employees, subcontractors, and consultants on the Temporary Easement Area. 14. This Temporary Easement Agreement will terminate and expire and be of no further force and effect without further action or notice by or to Grantor or Grantee on the earlier of: (i) expiration of twelve months from the Effective Date (the "Initial Temporary Easement Term "), or (ii) upon final acceptance by the City of its contractor's work on the Project as such work relates to Grantor's property. 15. At the conclusion of the Initial Temporary Easement Term, Grantee may elect to extend the Temporary Easement Agreement to cover that part of the Temporary Easement Area to the south of Grantor's existing buildings for one additional twelve (12) month period to begin immediately at the conclusion of the Initial Temporary Easement Term (the "Extension Period "). To exercise its right to so extend the time period covered by the Temporary Easement Agreement, Grantee shall: i) give Grantor written notice (the "Extension Notice ") no later than ninety (90) days before the expiration of the Initial Temporary Easement Term that Grantee will exercise the extension; ii) pay to Grantor, at the time of the Extension Notice, the sum of Two Thousand Five Hundred Dollars ($2,500.00). If Grantor properly exercises its right to extend the Temporary Easement Agreement for the Extension Period, then this Temporary Easement Agreement will expire and be of no further force and effect without further action or notice by or to Grantor or Grantee at the conclusion of the Extension Period. 4 32475.8 16. If necessary for Grantee to construct the New Driveway, Grantor will agree to extend the Temporary Easement Agreement to cover that portion of the Temporary Easement Area required to construct the New Driveway for one additional twelve (12) month period to begin immediately at the conclusion of the Initial Temporary Easement Term at no cost to Grantee and for the sole purpose of permitting the construction or completion of the New Driveway. 17. Grantee may not assign this Temporary Agreement or any of Grantee's rights under it without Grantor's prior written consent, which consent will not be unreasonably withheld, and any attempted assignment is void. The consent by Grantor to any assignment by Grantee will not release Grantee of its obligations under this Temporary Easement Agreement, and Grantee and the assignee will be jointly and severally liable for the performance of those obligations after any such assignment. This Temporary Easement Agreement binds, benefits, and may be enforced by the parties and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns, if any. 18. Grantee agrees and represents that: (i) this Temporary Easement Agreement is binding on Grantee 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 Temporary Easement Agreement, Grantee will not assert immunity from such suit, pursuant to the law as set out in the cases cited above. EXECUTED as the dates of the respective acknowledgements hereinafter set forth, but to be effective as of May _ , 2013. GRANTOR: GRANTEE: BRIAN JEFFREY MASSEY CITY OF SOUTHLAKE, TEXAS By: By Brian Jeffrey Massey The Honorable John Terrell, Mayor Attest: Alicia Richardson, City Secretary REMAINDER OF PAGE INTENTIONALLY BLANK 5 32475.8 ACKNOWLEDGMENTS STATE OF TEXAS § § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared BRIAN JEFFREY MASSEY, 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 day of May, 2013. Notary Public in and for The State of Texas My Commission Expires: Typed or Printed Name of Notary 6 32475.5 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, Mayor of the City of Southlake, 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 day of May, 2013. Notary Public in and for The State of Texas My Commission Expires: Typed or Printed Name of Notary 7 32475.8 Exhibit "A" Property Description of Temporary Easement Area 8 32475.8 EXHIBIT "A" LEGAL DESCRIPTION TEMPORARY CONSTRUCTION EASEMENT NORTH KIMBALL AVENUE PARCEL 15 BEING 0.261 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 Jeff Massey, by the deed recorded in Volume 16881, Page 198, of the Deed Records of Tarrant County, Texas. Said 0.261 acre of land being more particularly described by metes and bounds as follows: BEGINNING at a point in the new West right -of -way line of North Kimball Avenue, and Tying N 89 45' 37" W 49.42 feet and S 00° 49' 31" E 15.00 feet, from a "PK" nail found marking the Northeast corner of said Massey Tract; THENCE S 00° 49' 31" E 77.80 feet, to a point; THENCE S 89° 10' 29" W 10.00 feet, to a point; THENCE S 00° 49' 31" E 25.00 feet, to a point; THENCE N 89° 10' 29" E 7.00 feet, to a point; THENCE S 00° 49' 31" E 275.00 feet, to a point; THENCE N 89° 10' 29" E 3.00 feet, to a point; THENCE S 00° 49' 31" E 85.27 feet, to a point; THENCE S 45° 00' 00" W 19.71 feet, to a point; THENCE N 89° 38' 59" W 10.87 feet, to a point; THENCE N 00° 49' 31" W 164.99 feet, to a point; THENCE S 88° 46' 50" E 7.31 feet, to a point; THENCE N 00° 44' 35" W 192.81 feet, to a point; THENCE S 89° 10' 29" W 13.21 feet, to a point; THENCE N 00° 39' 36" W 92.65 feet, to a point; THENCE N 75° 27' 39" W 109.12 feet, to a point; THENCE S 89° 45' 37" E 135.59 feet, to the POINT OF BEGINNING, containing 0.261 acre (11,389 square feet) of land. EXHIBIT G.120091LEGALS \KIMBALL- LEGALS \TEMP -15A Doc Exhibit "B" Survey of Temporary Easement Area 9 32475.8 RICHARD HOLUDAY AND WIFE, CALL TABLE MARY ANN HOLUDAY z L - S 00 °49'31 "E 77.80' VOL. 14325, PG. 524, D.R.T.C.T. L -2 S 89 °10'29 "W 10.00' L -3 5 00 °49'31 "E 25.00' L -4 N 89°10'29 "E 7.00' POINT OF ce NORTHWEST CORNER L -5 N 89 °10'29 "E 3.00' BEGINNING cn MASSEY TRACT L - 5 88 °46'50"E 7.31' S 00°49'31"E "PK" NAIL FOUND L - S 89 °45'37 "E 135.59' PROPOSED COMMON 15.00' - - ACCESS EASEMENT _ TUMBLEWEED - - I -7 ( TRAIL N 7 109 '39"W 1 N 89°45'37"W -1 1 N 00 °39'36 "W ,,,' • 1 RI HTOF-WAY 92.65' II -2 LINE I S 89 °10'29 "W 13.21' -i -4 1 3 1 I I I I W 1 1 JEFF MASSEY M p LOT 3, THE HILL ADDITION VOL. 16881, PG. 198 4 M .6, Y< VOL. 388 -159, PG. 96 't N °' ° 0 P.R.T_C.T. D.R.T.C.T. al = Q cJ �,, Tb4PORARY CONSTRUCTION z I N N I Z CRIPPLE N E REEK OR h EASEMENT 0.261 ACRE L -6 �Q , O +o . . 11,389 SQ.FT. PRDPO ED WALL EASEMENT � Cf 2 � N 00°49'31 "W I — — P c:, NEW I 164.99' 5 1 1 - I RIGHT -OF -WAY LINE I S 00 °1.9'31 "E N 89 °38'59 "W - 85 27' - - 1/2 IRSAI 10.87' I SURVEY UNE CENTERUN_E ROAD _ — - - - 'PK" NAIL FOUND SOUTHEAST CORNER "PK" NAIL FOUND IN S 45 °0 '00 "WI OF MASSEY TRACT CENTERLINE OF ROAD 19.71' I , ryy 1 1 1 � `' J +° h I w � Poi Z <((<1-- 5� 6 2 i ii � `� ÷°' �o?a I n I SCALE 1 "= 100' I S CITY OF SOUTHLAKE 2 1400 MAIN STREET, SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET EXHIBIT "B" [6 BRITTAIN &CRAWFORD TEMPORARY CONSTRUCTION -- /;, p ,.- o . LAND SURVEYING x EASEMENT `� * +'�, m r,_v \ ^`, TOPOGRAPHIC MAPPING 1 • . 0.261 ACRE OF LAND ` W JANE S L BRITTAIN =; ��TT ■ c151711326-0t11 FMNo.(�r626 -gM 469-311R LOCATED IN THE .f'• 16 �'� x FA %Nw (1377) 928- 9347 ,, .% 4 5 P.O. BOX 11374 • 3908 SOUTH FREEWAY FORT WORTH, TEXAS 76110 FRANCIS THROOP SURVEY ' � ° su R��J W EMIL °'m'°'bnHaln-c'°'`°'d°w' ABSTRACT No. 1511 SOUTHLAKE, TARRANT COUNTY, TEXAS JULY 6, 2010 \KIMBALL�T -15A\ R EVISED : MA 28 , 201 12jgq $ SETTLEMENT AGREEMENT EXHIBIT L SECTION 6 NONCONFORMING USES (As amended by Ordinance No. 480 -N & 480 -QQ) (As further amended by Ordinance No. 480 -WW) (As further amended by Ordinance No. 480 -BBBB) (As further amended by Ordinance No. 480 -KKKK) 6.1 INTENT - Within the districts established by this ordinance or amendments thereto that may later be adopted, there exist lots, structures, and uses of land and structures which were lawful before this ordinance was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this ordinance or future amendments. It is the intent of this ordinance to permit these nonconformities to continue (whether by the same or different owners or tenants) until they are removed, but not to encourage their survival. Such uses are declared by this ordinance to be incompatible with permitted uses in the districts involved. It is further the intent of this ordinance that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere within the same district. A nonconforming use of a structure or land shall not be extended or enlarged after passage of this ordinance by the addition of uses of a nature which would be prohibited generally in the district involved. 6.2 EXISTING BUILDING PERMITS - To avoid undue hardship, nothing in this ordinance shall be deemed to require a change in the plans, construction, or designated use of any building or land development project for which a building permit was lawfully issued no more than six months prior to the date of adoption or amendment of this ordinance. Construction on a building permit issued prior to the adoption of this ordinance must be begun within six months of the adoption date and must be completed within two years of adoption as under Section 3.5, "Expiration of Building Permit." Such permit shall not be renewed or extended without all other conditions of this zoning ordinance having been met. 6.3 SIZE NONCONFORMITY OF LOTS OF RECORD - In any district in which single - family dwellings or commercial buildings are permitted, notwithstanding limitations imposed by other provisions of this ordinance, a single - family dwelling or commercial building and customary accessory buildings may be erected on any single lot at the effective date of adoption or amendment of this ordinance where zoning under this ordinance is otherwise proper. This provision shall apply even though such lot fails to meet requirements for width or area, or both, that are generally applicable in the district, provided that yard dimensions and other requirements not involving area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located. Variance of yard requirements shall be obtained only through action of the Board of Adjustment. Nothing in the above paragraph shall apply to a mobile home previously legally permitted and used or occupied as a residential dwelling on any tract of land within the city. Permits for use and occupancy for the replacement of such mobile homes with HUD -code manufactured homes is authorized. (as amended by Ord. 480 -QQ) EXHIBIT 6 -1 L 6.4 NONCONFORMING USES OF LAND - Where, at the effective date of adoption or amendment of this ordinance, lawful use of land exists that is made no longer permissible under the terms of this ordinance as enacted or amended, such use may be continued, so long as it remains otherwise lawful, subject to the following provisions: a. No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this ordinance; b. A nonconforming use, if changed to a conforming use, may not thereafter be changed back to a nonconforming use. A nonconforming use, if changed to a more restrictive nonconforming use, may not thereafter be changed except to an equal or a more restricted use; c. No such nonconforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date of adoption or amendment of this ordinance; d. No additional structures shall be erected in connection with such nonconforming use of land. 6.5 NONCONFORMING STRUCTURES - Where a lawful structure exists at the effective date of this ordinance or amendment thereof that could not be built under the terms of this ordinance by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions: a. Such structure may not be enlarged in a way which increases its nonconformity; b. Such structure may not be altered in a way which increases its nonconformity; c. Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations of the district in which it is located after it is moved. Nothing in the above paragraph shall apply to a mobile home previously legally permitted and used or occupied as a residential dwelling on any tract of land within the city. Permits for use and occupancy for the replacement of such mobile homes with HUD -code manufactured homes is authorized. (as amended by Ordinance 480 -QQ) 6.6 NONCONFORMING USES OF STRUCTURES - If a lawful use of a structure exists at the effective date of adoption or amendment of this ordinance, that would not be allowed in the district under the terms of this ordinance, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions: 6 -2 a. No existing structure devoted to a use not permitted by this ordinance in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved, or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located; b. A nonconforming use, if changed to a conforming use, may not thereafter be changed back to a nonconforming use. A nonconforming use, if changed to a more restrictive nonconforming use, may not be thereafter changed except to an equal or to a more restricted use; c. Any nonconforming use may be extended throughout any parts of a structure which were manifestly arranged or designed for such use at the time of adoption or amendment of this ordinance, but no such use shall be extended to occupy any land outside such structure. 6.7 REPAIRS AND MAINTENANCE - On any building devoted in whole or in part to any nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, to an extent not exceeding twenty -five percent (25 %) of the current replacement value of the building, provided that the cubic content of the building as it existed at the time of passage or amendment of this ordinance shall not be increased. If a building or portion of a building containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by any duly authorized City official to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired, or rebuilt except in conformity with the regulations of the district in which it is located. Nothing in this ordinance shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official. 6.8 SPECIAL EXCEPTION USES /SPECIFIC USE PERMITS: NOT NONCONFORMING USES - Any use for which a special exception or specific use permit is granted pursuant to this ordinance shall not be deemed a nonconforming use, but shall, without further action be deemed a conforming use in such district only for the single property granted such special exception or specific use permit. Any special exception or specific use permit heretofore granted by the Board of Adjustment or City Council which was lawfully existing at the effective date of this ordinance but which is no longer permitted under this ordinance or amendment thereof shall be considered a nonconforming use and shall be subject to all terms of this ordinance relating to nonconforming uses, unless the zoning classification under this ordinance for the property to which the special 6 -3 use attaches allows that particular use. Any special exception or specific use permit which has expired or which is not in compliance with the conditions placed upon such use shall not be permitted to continue. 6.9 DISCONTINUANCE OR ABANDONMENT (Amended by Ordinance 480 -BBBB) a. If a legal, non - conforming use is either discontinued or abandoned under the terms and conditions of this section, such use shall not be resumed and any further use shall be in conformity with the provisions of this ordinance. b. For the purpose of this section, "abandonment" shall be defined as intent by the owner to permanently close or cease the use, coupled with any act or statement by the owner that manifests such intent. The following conditions, events or conduct shall be presumed to constitute intent to abandon a non - conforming use: 1. the closure or cessation of the non - conforming use for a period of one hundred twenty (120) consecutive days; 2. the failure of the owner to repair the structure or property used to operate the non - conforming use within thirty (30) days after the chief building official or code enforcement officer has given the owner written notice that the building, structure or property is: (a) in an advanced stage of dilapidation, as determined by either the zoning administrator or the chief building official; (b) in violation of one or more applicable health and safety codes adopted by the City that govern the use or condition of structures designed for human occupancy, as amended, including but not limited to the applicable building, plumbing, electrical, mechanical, and life safety codes as adopted by the City; or (c) otherwise unsafe for the continuation of the current use or occupancy. c. For the purpose of this section, "discontinuance" shall be defined as follows: 1. When a non - conforming use has historically been operated on a continuous basis, a closure or cessation of a use for a period of one hundred eighty (180) consecutive days, irrespective of whether the owner has actual intent to abandon the use. 2. When a non - conforming use has historically been operated only on a seasonal basis, such use shall be deemed to have been discontinued, regardless of whether the owner has actual intent to abandon the use, if either: 6-4 (a) the structure or property upon or in which the use has been operated is closed or the non - conforming use ceases to operate for a period of one hundred eighty (180) consecutive days; or (b) the structure or property upon or in which the use has been operated is closed or the non - conforming use ceases to operate in a bona -fide manner during one or more normal and customary seasons or periods of operation during which the non - conforming use has historically been operated. d. Upon the request of the City or any other interested complainant, including the owner of any real property located within one thousand (1,000) feet of the real property containing a legal non - conforming use or structure, the zoning administrator shall make a written determination as to whether such use has been abandoned or discontinued as provided herein. e. If the complainant or the owner of the nonconforming use wishes to appeal a determination of the zoning administrator as to whether the non - conforming use has been abandoned or discontinued, such person may perfect an appeal by filing a written notice of appeal with the zoning administrator and city secretary and paying the applicable fee within ten (10) business days of the zoning administrator's decision. Upon the filing of such an appeal, the board of adjustment shall, as soon as practicable, hold a public hearing on such appeal, and, following such public hearing, may reverse the decision of the zoning administrator based on a majority vote of the members present and voting. The complainant shall bear the burden of proof and persuasion to establish either that the non - conforming use has been closed or ceased for a period of one hundred twenty (120) consecutive days or that the owner of the non - conforming use has failed to repair the structure or property used to operate the non - conforming use within thirty (30) days after the chief building official or code enforcement officer has given the owner written notice as described above. The owner of the nonconforming use shall bear the burden of proof and production to establish that the owner of the nonconforming use did not have actual intent to abandon the use. 6 -5 6.10 DESTRUCTION OR DAMAGE TO NONCONFORMING STRUCTURE OR USE (Amended by Ordinance 480 -BBBB) a. Nonconforming Structures. 1. If a legal nonconforming structure is totally destroyed or partially damaged by the elements, fire, other catastrophe, or other casualty, the structure may not be repaired or reconstructed except in conformity with the provisions of this ordinance. 2. If a nonconforming structure is partially damaged by the elements, fire, other catastrophe, or other casualty, and the owner of the nonconforming structure wishes to repair or reconstruct the damaged structure, upon submission of a request for a building permit, the zoning administrator shall first determine in writing whether the cost of repair or reconstruction is less than fifty percent (50 %) of the structure's fair market value immediately preceding the casualty, exclusive of the value of the real property. In making a determination regarding the cost of repair or reconstruction, the zoning administrator shall include all costs to make all repaired or reconstructed portions of the structure conform to all applicable health and safety codes adopted by the City that govern the use or condition of structures designed for human occupancy, as amended, including but not limited to the applicable building, plumbing, electrical, mechanical, and life safety codes as adopted by the City. 3. If the zoning administrator determines that the cost of repair or reconstruction is less than fifty percent (50 %) of the structure's fair market value immediately preceding the casualty, exclusive of the value of the real property, and the owner of the nonconforming structure complies with all other requirements of the City Code, the owner of the nonconforming use or structure shall be entitled to a building permit permitting the owner to repair or reconstruct the damaged structure, provided that all repaired or reconstructed portions of the structure shall conform to all applicable health and safety codes adopted by the City as described above. If the zoning administrator determines that the cost of repair or reconstruction is equal to or greater than fifty percent (50 %) of the structure's fair market value immediately preceding the casualty, exclusive of the value of the real property, the owner of the nonconforming structure shall be entitled to a building permit authorizing the owner to repair or reconstruct the damaged structure only if the proposed repairs and reconstruction completely eliminate the non - conformity; otherwise, the owner shall be required to demolish the damaged structure and bring the property into full conformity with the terms of this ordinance. 6 -6 4. If a legal nonconforming structure is (Amended by Ord. No. 480 - KKKK): (a) totally destroyed or partially damaged by the elements, fire, other catastrophe or casualty; and (b) the nonconformity is completely or partially the result of noncompliance with minimum yard (building setback), maximum lot coverage or maximum impervious coverage regulations; and (c) the lot where the structure is or was located was decreased in size before the destruction or damage as the result of land or right -of -way acquisition by a public agency having the power of eminent domain; the building official shall include the area acquired by the public agency with the area of the lot when deciding whether the structure complies with the minimum yard (building setback), maximum lot coverage and maximum impervious coverage regulations. This subsection only applies when deciding whether a property owner is entitled to a building permit after a legal nonconforming structure is totally destroyed or partially damaged. Any reconstruction or replacement shall not cause a greater extent of nonconformance than the pre- existing structure excluding the area acquired by the public agency. The reconstruction or replacement shall not be in conflict with the real estate interest of any public agency and must otherwise conform to the regulations of this Ordinance. The expansion, enlargement or intensification of a preexisting nonconforming use or structure during reconstruction or replacement shall not be allowed under this subsection and shall be regulated by the provisions of Section 6. b. Nonconforming Uses. 1. If a structure used in the operation of a legal nonconforming use is totally destroyed or partially damaged by the elements, fire, other catastrophe, or other casualty, the structure may not be repaired or reconstructed and the nonconforming use may not be recommenced except in conformity with the provisions of this ordinance. 2. If a structure used in the operation of a legal nonconforming use is partially damaged by the elements, fire, other catastrophe, or other casualty, and the owner of the nonconforming use wishes to repair or reconstruct the damaged structure, upon submission of a request for a building permit, the zoning administrator shall first determine in writing whether the cost of repair or reconstruction is less than 6 -7 fifty percent (50 %) of the structure's fair market value immediately preceding the casualty, exclusive of the value of the real property. In making a determination regarding the cost of repair or reconstruction, the zoning administrator shall include all costs to make all repaired or reconstructed portions of the structure conform to all applicable health and safety codes adopted by the City that govern the use or condition of structures designed for human occupancy, as amended, including but not limited to the applicable building, plumbing, electrical, mechanical, and life safety codes as adopted by the City. 3. If the zoning administrator determines that the cost of repair or reconstruction is less than fifty percent (50 %) of the structure's fair market value immediately preceding the casualty, exclusive of the value of the real property, upon obtaining all required permits, the owner may repair or reconstruct the structure and continue the nonconforming use. If the zoning administrator determines that the cost of repair or reconstruction is equal to or greater than fifty percent (50 %) of the structure's fair market value immediately preceding the casualty, exclusive of the value of the real property, the owner may not repair or reconstruct the structure, and shall discontinue the nonconforming use. c. Multiple Structures used in Operation of Non - Conforming Use. 1. If an individual structure(s) used in operation of a legal non - conforming use is destroyed or damaged by the elements, fire, other catastrophe, or other causes, and the owner of the nonconforming structure wishes to repair or reconstruct the damaged structure, the zoning administrator shall first determine in writing whether the cost of repair or reconstruction is less than fifty percent (50 %) of the total value of structures and improvements used to conduct the nonconforming use, exclusive of the value of the real estate, and whether the destroyed or damaged structure(s) constituted an integral part of the nonconforming use without which the nonconforming use cannot be profitably operated. In making a determination regarding the cost of repair or reconstruction, the zoning administrator shall include all costs to make all repaired or reconstructed portions of the structure conform to all applicable health and safety codes adopted by the City that govern the use or condition of structures designed for human occupancy, as amended, including but not limited to the applicable building, plumbing, electrical, mechanical, and life safety codes as adopted by the City. 2. (a) If the zoning administrator determines that the cost of repair or reconstruction is less than fifty percent (50 %) of the total value of structures and improvements used to conduct the nonconforming use, exclusive of the value of the real estate, and that the destroyed or damaged structure(s) constituted an integral part of the nonconforming use without which the nonconforming use cannot be profitably operated, and the owner of the nonconforming structure complies with all other 6 -8 requirements of the City Code, the owner of the nonconforming use or structure shall be entitled to a building permit permitting the owner to repair or reconstruct the damaged structure, provided that all repaired or reconstructed portions of the structure shall conform to all applicable health and safety codes adopted by the City as described above, and shall be entitled to continue to use the repaired or reconstructed structure in operation of the non - conforming use. (b) If the zoning administrator determines both that the cost of repair or reconstruction is equal to or greater than fifty percent (50 %) of the total value of structures and improvements used to conduct the nonconforming use, exclusive of the value of the real estate, and that the destroyed or damaged structure(s) constituted an integral part of the nonconforming use without which the nonconforming use could be profitably operated, the owner may not repair or reconstruct the structure and shall discontinue the nonconforming use. (c) If the zoning administrator determines that the cost of repair or reconstruction is equal to or greater than fifty percent (50 %) of the total value of structures and improvements used to conduct the nonconforming use, exclusive of the value of the real estate, but that the destroyed or damaged structure(s) did not constitute an integral part of the nonconforming use without which the nonconforming use could be profitably operated, the owner may not repair or reconstruct the structure but may continue the nonconforming use. (d) If the zoning administrator determines that the cost of repair or reconstruction is less than fifty percent (50 %) of the total value of structures and improvements used to conduct the nonconforming use, exclusive of the value of the real estate, but that the destroyed or damaged structure(s) did not constitute an integral part of the nonconforming use without which the nonconforming use could be profitably operated, the owner of the nonconforming use or structure shall be entitled to a building permit permitting the owner to repair or reconstruct the damaged structure, provided that all repaired or reconstructed portions of the structure shall conform to all applicable health and safety codes adopted by the City as described above, but shall not be entitled to continue to use the repaired or reconstructed structure in operation of the non - conforming use. d. Conditions on Repair or Reconstruction. All repaired or reconstructed portions of the structure shall conform to all applicable health and safety codes adopted by the City as described above. Notwithstanding any provision of this section to the contrary, the costs for repair or reconstruction of any damaged or destroyed structure(s) may not be included 6 -9 in determining the owner's investment in the non - conforming use subject to recoupment or amortization, and also shall not be included in any subsequent proceedings regarding amortization of the nonconforming use. If the zoning administrator and /or Board of Adjustment have previously permitted repair or reconstruction or a non - conforming structure or a structure used in the operation of a non - conforming use, the owner of the nonconforming use shall bear the burden of proof and production to establish that the costs of repair or reconstruction have been excluded in any subsequent proceedings regarding amortization of the nonconforming use. The zoning administrator and /or Board of Adjustment may also impose other conditions on repair or reconstruction to prevent such repair or reconstruction from unduly delaying the return of such property to a conforming use and to prevent the increase of any nonconformity of a nonconforming structure or use beyond what existed prior to the casualty, and to require that the reconstructed structure conforms in all other respects to the all requirements of the ordinances of the City. The determination of the Board of Adjustment on these issues shall be final. e. Special Exception for Financial Hardship. 1. If the zoning administrator determines that the cost of repair or reconstruction is equal to or greater than fifty percent (50 %) of the structure's fair market value immediately preceding the casualty, exclusive of the value of the real property, and either the owner of the nonconforming use or structure does not timely appeal that determination or the board of adjustment affirms that determination, the owner of the nonconforming use or structure may request a special exception permitting the owner of the nonconforming use or structure to repair and /or reconstruct the structure and /or continue the nonconforming use by filing a written request for special exception relating to continuance of a non - conforming use or structure with the zoning administrator and city secretary and paying the applicable fee within ten (10) business days of the date of determination of the zoning administrator, or within ten (10) business days of the date the board of adjustment affirms the determination of the zoning administrator, as may be applicable. 2. Upon the filing of such a request for special exception, the board of adjustment shall, as soon as practicable, hold a public hearing on such request and, following such public hearing, may grant the special exception and authorize repair and reconstruction if the board of adjustment determines that the financial hardship caused the owner of the nonconforming use or structure outweighs any negative impacts on the City and surrounding properties caused by the continuation of operation of the non - conforming use. When making this determination, the Board of Adjustment shall consider the property rights both of the owner of the non - conforming structure or non - conforming use and the owners of adjacent and nearby properties, the desirability for all property to conform to the regulations of this ordinance, the character of the area surrounding the non - conforming use or 6 -10 structure, the historic uses of the area surrounding the non - conforming use or structure, the adverse impacts, if any, of the non - conforming structure or use on the surrounding property and neighborhood, the diminishment ofvalue, if any, of the surrounding property and neighborhood due to the continuance of the non- conforming structure or non - conforming use, and the public welfare, including any person or persons affected by the continuation of the non - conforming structure or non - conforming use. 3. The owner of the nonconforming use or structure will bear the burden of proof and persuasion on the property rights of the owner of the nonconforming use or structure, the investment of the owner in the non - conforming structure or non- conforming use, and the past and /or anticipated future profitability of the non- conforming structure or non - conforming use, and any other circumstances which support the granting of the special exception. The City will bear the burden of proof and persuasion on the property rights of the owners of adjacent and nearby properties, the desirability for all property to conform to the regulations of this ordinance, the character of the area surrounding the non - conforming use or structure, the historic uses of the area surrounding the non - conforming use or structure, the adverse impacts, if any, of the non - conforming structure or use on the surrounding property and neighborhood, the diminishment of value, if any, of the surrounding property and neighborhood due to the continuance of the non- conforming structure or non - conforming use, and the public welfare, including any person or persons affected by the continuation of the non - conforming structure or non - conforming use. The determination of the Board of Adjustment shall be final. f. Single family residences. Notwithstanding anything herein to the contrary, a non- conforming single family residence which is damaged or destroyed shall be permitted to be reconstructed without approval of the zoning administrator or Board of Adjustment regardless of the extent of destruction provided that the reconstruction complies with all current building codes and is commenced within six (6) months ofthe date of destruction. The failure of the owner to start such reconstruction within six (6) months shall forfeit the owner's right to restore or reconstruct the dwelling except in conformance with this ordinance. g. Appeals. If the owner of the nonconforming use or structure wishes to appeal a determination of the zoning administrator under this section, the owner may do so by filing a written notice of appeal with the zoning administrator and city secretary and paying the applicable fee within ten (10) business days of the zoning administrator's decision. Upon the filing of such an appeal, the board of adjustment shall, as soon as practicable, hold a public hearing on such appeal, and, following such public hearing, shall decide such appeal. The owner of the nonconforming use or structure shall bear the burden of proof and production at such appeal hearing to establish that the zoning administrator's determination should be reversed. The determination of the Board of 6 -11 Adjustment shall be final. h. Failure to timely commence repair or reconstruction. With regard to any request to repair or reconstruct under this section, if the owner of a nonconforming use or structure fails to begin reconstruction of the structure (when permitted to do so by the terms of this ordinance) within six (6) months of the later of the date of issuance of a building permit, the nonconforming structure or use shall be deemed to be discontinued or abandoned as provided in Section 6.9 above. Notice and Procedures for Board of Adjustment Hearing. Prior to any hearing before the Board of Adjustment under this section, the zoning administrator shall provide the owner of any nonconforming use or structure for which termination or amortization is sought with at least thirty (30) days prior written notice of the appeal hearing. Such written notice shall make specific reference to this section. At the public hearing on the issue, the owner may appear in person and/or by counsel, and the City and the owner may present any evidence, written or oral, to the Board, which each deems relevant. The Board will not be bound by formal rules of evidence. The City will be represented by the City Attorney. The Board may also retain separate legal counsel to represent and advise the Board, and the City shall pay for such counsel. 6.11 AMORTIZATION OF NONCONFORMING USES (Amended by Ordinance 480 -BBBB) a. The Board of Adjustment may from time to time on its own motion, on the City's motion, or upon cause presented by interested persons, inquire into the existence, continuation or maintenance of any nonconforming use within the City. The Board of Adjustment may take specific action to abate, remove, limit or terminate any nonconforming use or structure under the guidelines established in this section. b. The Board of Adjustment may order the immediate termination of a nonconforming use or structure if the Board determines that the owner's investment in the nonconforming use or structure has been recouped through amortization over time. c. Alternatively, if the Board determines that the owner's investment in the nonconforming use or structure has not been recouped through amortization at the time of the hearing, the Board of Adjustment may order the termination of a nonconforming use or structure on such future date by which the Board determines the owner's investment in the nonconforming use or structure will be recouped through amortization. d. In making any determination under this section, the Board of Adjustment shall first hold a public hearing. The zoning administrator shall provide the owner of any nonconforming use or structure for which termination or amortization is sought with at least thirty (30) days prior written notice of the action sought. Such written notice shall make specific reference to this section. 6 -12 e. In making any determination under this section, the Board shall consider the investment of the owner in the non - conforming structure or non - conforming use, the past and /or anticipated future profitability of the non - conforming structure or non - conforming use, the desirability for all property to conform to the regulations of this ordinance, the character of the area surrounding the non - conforming use or structure, the historic uses of the area surrounding the non - conforming use or structure, the adverse impacts, if any, of the non - conforming structure or use on the surrounding property and neighborhood, the diminishment of value, if any, of the surrounding property and neighborhood due to the continuance of the non - conforming structure or non - conforming use, the property rights both of the owner of the non - conforming structure or non - conforming use and the owners of adjacent and nearby properties, and the public welfare, including any person or persons affected by the continuation of the non - conforming structure or non- conforming use. f. The City will bear the burden of proof and persuasion on the desirability for all property to conform to the regulations of this ordinance, the character of the area surrounding the non - conforming use or structure, the historic uses of the area surrounding the non- conforming use or structure, the adverse impacts, if any, of the non - conforming structure or use on the surrounding property and neighborhood, the diminishment of value, if any, of the surrounding property and neighborhood due to the continuance of the non- conforming structure or non - conforming use, the property rights of the owners of adjacent and nearby properties, and the public welfare, including any person or persons affected by the continuation of the non - conforming structure or non - conforming use. The owner of the nonconforming structure or use will bear the burden of proof and persuasion on the owner's property rights, the investment of the owner in the non- conforming structure or non - conforming use, and the past and /or anticipated future profitability of the non - conforming structure or non - conforming use. The decision of the Board of Adjustment shall be final. g. Prior to any hearing before the Board of Adjustment under this section, the zoning administrator shall provide the owner of any nonconforming use or structure for which termination or amortization is sought with at least thirty (30) days prior written notice of the appeal hearing. Such written notice shall make specific reference to this section. At the public hearing on the issue, the owner may appear in person and/or by counsel, and the City and the owner may present any evidence, written or oral, to the Board, which each deems relevant. The Board will not be bound by formal rules of evidence. The City will be represented by the City Attorney. The Board may also retain separate legal counsel to represent and advise the Board, and the City shall pay for such counsel. h. No outside storage or display that is not in conformity with this ordinance shall be allowed. 6 -13 SETTLEMENT AGREEMENT EXHIBIT M EXHIBIT "M" DRIVEWAY AND DRIVE SPECIFICATIONS 1. The New Driveway will be constructed to at least the following specifications: a. 2 inches of compacted minus 2 gravel base b. 6 inches of concrete, with concrete 3500 psi @ 28 days c. # 4 rebar, 16 inches on center each way d. Expansion joints at least every 20 feet, with smooth dowel bars installed in each expansion joints 2. The New Drive will be constructed to at least the following specifications: a. 24 feet in width, measured from bottom of curb to bottom of curb b. Standard curbs c. 2 inches of compacted minus 2 gravel base d. 6 inches of concrete, with concrete 3500 psi @ 28 days e. # 4 rebar, 16 inches on center each way f. Expansion joints at least every 20 feet, with smooth dowel bars installed in each expansion joints EXHIBIT 32476.3 SETTLEMENT AGREEMENT EXHIBIT N 101 -0 -16 1 C6enq, Edwin ,. ,., , , ;.,....',- AIIIV:„.7., ‘44',.,,. 04,1 d, By. 2016_ 13;51 (Op11on 3) La 11 Saved: 2 : \lac oadw :41,\p 2 6 ] . 00t \cadd \e-xl6lt „0,._06_„--...- Filenam : p r ope rty ulilmote \paraln lio, , ,, ri �8d y y6 rc. $ d - if% to 1 '!''44:444';' � 3• , y 5 3 • d 1 I ' �� `s 1 C � � i 1: y b� � i . , ,i,. -1,:r--, . ,,,i,,1:14, ..: , ::::1,, ,, , ,,,, , ,,,, { r t ig - ' - i --,--1; '.‘"t"*,;-;-,,,g'llt. , 141,14,i,r. I k W s 1 1 , ... R ' � m. , '” 40 a i . � t _ 6 f L^ Mw v - i , i r, r„..,..,,i' -..,,:;rr,,....,„*.i:, --.„,„,,,,,o, „,...„,.. . ..- r-rr - -,.. --, , ,I.I.,.."., 4 :: :: : .4. J j ai' ,- J6 $ , , t? a d o - y „ a § .. >� �. B � of � "fit bq, 'ma '4s k e "41;11;'4:;',"1: ; G , j . s . r ! -1 . + i 1 ,i .� G 44 a n. ".§ 4 r 1111 11,110 'Ilk,' #' i EXHIBIT g g r i7e1 rt s a II o u'l K 0*10: NAY 2013 Kimley-Horn oE9� 5'.1: ley -Horn 1 N MASSEY /HOLLIDAY �. a n d Associate DRA CITY OF SOUTHLAKE M „„� - w„� 15nIr PROPERTY NORTH KIMBALL AVENUE OIECKm: CAT MAY 16, 2 13 I eTM p au.6 e� r . 6 . No Revielm By Dote KMA NO.: 08123].001 pA1E Jar usfia SETTLEMENT AGREEMENT EXHIBIT 0 fl 2 0 3 n :'� x 0 RH i T OQ A 5 . D CD VI . o D 0 5 * ? ah � ° a v 3 .0 a y 3 O q R I I,it t s O M V M (D ' , 0 h At + � Il ■ W M agkst Al2 8 1 a 4' A its M g 1 1/ 9 Iii - AP " , . 00 Z w EXHIBIT 0 SETTLEMENT AGREEMENT EXHIBIT P THE FOLLOWING COMMITMENT FOR'1 INSURANCE IS NOT VALID UNLESS YOUR NAME AND THE POLICY AMOUNT ARE SHOWN IN SCHEDULE A, AND OUR AUTHORIZED REPRESENTATIVE HAS COUNTERSIGNED BELOW. COMMITMENT FOR TITLE INSURANCE ISSUED BY CHICAGO TITLE INSURANCE COMPANY We, Chicago Title Insurance Company, will issue our title insurance policy or policies (the Policy) to You (the proposed insured) upon payment of the premium and other charges due, and compliance with the requirements in Schedule B and Schedule C. Our Policy will be in the form approved by the Texas Department of Insurance at the date of issuance, and will insure your interest in the land described in Schedule A. The estimated premium for our Policy and applicable endorsements is shown on Schedule D. There may be additional charges such as recording fees, and expedited delivery expenses. This Commitment ends ninety (90) days from the effective date, unless the Policy is issued sooner, or failure to issue the Policy is our fault. Our liability and obligations to you are under the express terms of this Commitment and end when this Commitment expires. Authorized Countersignature CHICAGO nriz INSURANCE COWS Jr; RATTIKIN TITLE COMPANY 1 , � o f 6+ areas * ""'t dA EXHIBIT 1 Form No. 72C13443 (11/2009) Commitment For Title Insurance (T -7) TEXAS TITLE INSURANCE INFORMATION Chicago Title Insurance Company Title insurance insures you against loss resulting El seguro de titulo le asegura en relacion a perdidas from certain risks to your title. resultantes de ciertos riesgos que pueden afectar el titulo de su propriedad. The commitment for Title Insurance is the title El Compromiso para Seguro de Titulo es la insurance company's promise to issue the title promesa de la compania aseguradora de titulos de insurance policy. The commitment is a legal emitir la poliza de seguro de titulo. El Compromiso document. You should review it carefully to es un documento legal. Usted debe leerlo completely understand it before your closing date. cuidadosamente y endenterlo complemtente antes de la fecha para finalizar su transaccion. Your Commitment for Title insurance is a legal contract between you and us. The Commitment is not an opinion or report of your title. It is a contract to issue you a policy subject to the Commitment's terms and requirements. Before issuing a Commitment for Title insurance (the Commitment) or a Title Insurance Policy (the Policy), the Title Insurance Company (the Company) determines whether the title is insurable. This determination has already been made. Part of that determination involves the Company's decision to insure the title except for certain risks that will not be covered by the Policy. Some of these risks are listed in Schedule B of the attached Commitment as Exceptions. Other risks are stated in the Policy as Exclusions. These risks will not be covered by the Policy. The Policy is not an abstract of title nor does a Company have an obligation to determine the ownership of any mineral interest. -- MINERALS AND MINERAL RIGHTS may not be covered by the Policy. The Company may be unwilling to insure title unless there is an exclusion or an exception as to Minerals and Mineral Rights in the Policy. Optional endorsements insuring certain risks involving minerals, and the use of improvements (excluding lawns, shrubbery and trees) and permanent buildings may be available for purchase. If the title insurer issues the title policy with an exclusion or exception to the minerals and mineral rights, neither this Policy, nor the optional endorsements, ensure that the purchaser has title to the mineral rights related to the surface estate. Another part of the determination involves whether the promise to insure is conditioned upon certain requirements being met. Schedule C of the Commitment lists these requirements that must be satisfied or the Company will refuse to cover them. You may want to discuss any matters shown on Schedules B and C of the Commitment with an attorney. These matters will affect your title and your use of the land. When your policy is issued, the coverage will be limited by the Policy's Exceptions, Exclusions and Conditions, defined below. -- EXCEPTIONS are title risks that a Policy generally covers but does not cover in a particular instance. Exceptions are shown on Schedule B or discussed in Schedule C of the Commitment. They can also be added if you do not comply with the Conditions section of the Commitment. When the policy is issued, all Exceptions will be on Schedule B of the Policy. - EXCLUSIONS are title risks that a Policy generally does not cover. Exclusions are contained in the Policy but not shown or discussed in the Commitment. - CONDITIONS are additional provisions that qualify or limit your coverage. Conditions include your responsibilities and those of the Company. They are contained in the Policy but not shown or discussed in the Commitment. The Policy Conditions are not the same as the Commitment Conditions. CHICAGO TITLE INSURANCE COMPANY SCHEDULE A Effective Date: April 22, 2013 GF Number: 09 -04451 Commitment Number: 09- 04451, issued 05/28/13 at 08:00 -AM 1. The policy or policies to be issued are: (a) OWNER'S POLICY OF TITLE INSURANCE (Form T -1) (Not applicable for improved one-to -four family residential real estate) Policy Amount: $ 476,000.00 PROPOSED INSURED: City of Southlake, a municipal corporation (b) TEXAS RESIDENTIAL OWNER'S POLICY OF TITLE INSURANCE -- ONE -TO -FOUR FAMILY RESIDENCES (Form T -1 R) Policy Amount: PROPOSED INSURED: (c) LOAN POLICY OF TITLE INSURANCE (Form T -2) Policy Amount: PROPOSED INSURED: Proposed Borrower: (d) TEXAS SHORT FORM RESIDENTIAL LOAN POLICY OF TITLE INSURANCE (Form T -2R) Policy Amount: PROPOSED INSURED: Proposed Borrower: (e) LOAN TITLE POLICY BINDER ON INTERIM CONSTRUCTION LOAN (Form T -13) Binder Amount: PROPOSED INSURED: Proposed Borrower: (f) OTHER Policy Amount: PROPOSED INSURED: 2. The interest in the land covered by this Commitment 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 utility and drainage created by that certain Non - Exclusive Utility and Drainage Easement Agreement in Settlement of Condemnation from Brian Jeffrey Massey a/ka/ Jeff Massey to The City of Southlake, dated May , 2013, filed for record under Clerk's File No. 213 , Deed Records of Tarrant County, Texas. TRACT 3: Non - Exclusive Easement Estate for retaining wall created by that certain Non - Exclusive Retaining Wall Easement Agreement in Settlement of Condemnation from Brian Jeffrey Massey a /ka/ Jeff Massey to The City of Southlake, dated May , 2013, filed for record under Clerk's File No. 213 , Deed Records of Tarrant County, Texas. 3. Record title to the land on the Effective Date appears to be vested in: JEFF MASSEY, also known as BRIAN JEFFREY MASSEY 4. Legal description of land: Three tracts of land out of the FRANCIS THROOP SURVEY, Abstract No. 1511, Tarrant County, Texas, SCHEDULE A (Continued) GF Number: 09 -04451 being more particularly described by metes and bounds on Exhibit A attached hereto. FORM T -7: Commitment for Title Insurance (Schedule A) (09- 04451.PFD/09- 04451/36) (Rev. 02- 01 -10) RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS - 1 - C4 C; LEGAL DESCRIPTION PliiRMANENT RJGt t.T F.WAY NORM A#i ASE PARCEL 15 BEING 0.816 acre of land loczded in the FRANCIS THROQP SURVEY. AIWRACT N. 4511, O ce.. Tarrant st +, Texas, aril be a portion of a.tact of land conveyed to Jet/Massey, by. tie deed net rde - in Volume 10681 , Page 198: of Me Deed Retorts ef T CaVnty. T 9S. Said 0.816 acre of land being snore peutioulariy described by melesand bounds as ioliews: BEGINNING et a 'P sea found at the Southey t corner of said Massey Tract, and lying at the intersecron of the centerane of Meath 1Gr'rrbaI Ate. with the centerline of E. Highland StreN: THENCE Nor og 25' W 331.64 feet, eiing The &OA oout dauy fine or said Massey Tract, and along the centedirre cT E. Highland Street THENCE N 00' 39' 06' W 3498 feet. along the West boundary Tine of said Massey Tract, to a 34" iron rod marked 13dee n & Crawford" sat in the new NOrib right of rineofsaid E Ifighland Sit THENCE S 89' 38 59" E 269.97 feet: along the new North right- o1waay ire of said E. Frightand Street to a W Iron rod milted & Crawford" set in the new West right-caf v ay+ lime cif sad North Kimball Street; THENCE along the new West rigs* -of ray fine of said. North Kimball Street, as follows; 1. N 45 00' 00' E 19.71 feet, to a 9fi iron rate netted 'Bitf1Bin & Crawford set 2. H aQ° 49' 81 - W 478.08 •feek, to a Ya' iron rod marked 1$ritta3n & Crawford" set in the Nisi!' boundary Tim of said litatsey Tract, lying the South trourdry One of-a tract of land conveyed to Richard Holiday and wife, Mary Ann may, by the deed in *kale 14325. Page 524, by the Heed• Records or Tarrant .Cocuaty, Tom; THENCE S 89' 45 37" E 49.42 feet aio ng the North boundary he of said Massey Tract, and the South boundary fine of said Mary Trams i, b a "PK` wait found at the Norti east corner of said Massey Tract, tying in tee centerline of said North Kimball Avenue: THENCE S 00' 36' 1 r E 527.10 feet, along the East boundary line of said- Adassey Tract. and the centerline of said North tranbaf Avenue. to the POINT OF BEGINNING, containing 0.816 acre (35,543 square feet) Of NOTE: COMPANY DOES NOT REPRESENT THE ABOVE AGREAGE OR SQUARE FOOTAGE CALCULATIONS ARE CORRECT. -�,-- � - 2 EXHIBIT "A" LEGAL DESCRIPTION PERMANENT UTILITY, DRAINAGE AND WALL EASEMENT NORTH KIMBALL. AVENUE PARCEL 15 BEING 0.111 acre of !and located in the FRANCIS TMROOP SURVEY, ABSTRACT No. 1511, Soultilake, Tarrant County, Texas. and being a portion of a tract of land conveyed to Jeff Massey. by She deed recorded in Vane 16881, Page 198. of the Deed Records of Tarrant County, Texas. Said 0.111 acre of land being more particularly described by metes and bounds as fellows: BEGINNING at a 34" eon rod marked 'Stitlain & Crawford` set in the North boundary line of said Massey Trrac:t, and lying N 89' 45' 37' W 49.42 feet from a . PK" nag found marking the Northeast corner of said Massey Trad. Said Pant of Beginning also lying in the new West right- of-way fine of North Kimball Avenue: THENCE S 00' 49' 31' E 478.08 feet, along the new West rigtrt vf.way Line of said North Kimball Avenue, to a 34' iron rod marked "Sr8tein & Crawford', set: THENCE S 45" 00' 00' Wt 13.94 feet to a point THENCE N 0'D' 49' 31' W 487.98 feet. to a point in the North boundary kne of said Massey Tract 'THENCE S 89' 45' 37' E 10.00 feet along the North boundary lime of said Massey Tract. to the POINT OF BEGINNING. containing 0.111 acre (4830 square feet) of Wand. NOTE: COMPANY DOES NOT REPRESENT THE ABOVE AGREAGE OR SQUARE FOOTAGE CALCULATIONS ARE CORRECT. LEGAL "A � " +}I/�i� LR Pf PERMANENT WALL EASEMENT NORTH KIMBALL AVENUE PARCEL 15 BEING 0.028 acre of land loud in the FRANCIS THROOP SURVEY, ABSTRACT No. 1511, S uthIak , Tarrant County., Texas, and being a portion of a tract of Land conveyed to Jeff Massey, by the deed recorded in Volume 16881, Page 105, of the Deed Re zrtts of Tarrant County, Texas. Said 0.028 acre of and being more paf8cutarIy described by metes Sind bounds as follows: BEGINNING at a point in the new West right -of-way line of North Kimball Avenue, and lying N 89. 45 3T W 49.42 feet, and S 00°4911°E 92.80 feet, from a "PK` nal found marking the. Northeast comer of said Massey Tract. Said Point of Beginning also tying in the seta West right-of -way rune of North Kimball Avenue; Th ENCE S 00 49' 31° E 300.00 feet, along the new West right- of-way fine of said North lCunball Avenue, to a point THENCE S 89° to' 29"W 3.08 feet, to a point THENCE N 00 49' 31' W 275.00 feet, along a fine 3 feet West of and parallel to the new West right -of -way line of said North Kimbell Avenue, to a point THENCE S 89' 10' 29° Ifs' 7,00 feet, to a point; THENCE N 00° 49' 31' W 25.00 feet, along a line 10 feet West of and parallel to the new West rig € -way line of said North IGmball Avenue, to a point; THENCE N 89° 10' Zr E 10.00 feet, to the POINT OF BEGINNING, ' NING, oontadning 0.028 acre (1,075 sr.Itrare feet) of land. NOTE: COMPANY DOES NOT REPRESENT THE ABOVE AGREAGE OR SQUARE FOOTAGE CALCULATIONS ARE CORRECT. SCHEDULE B EXCEPTIONS FROM COVERAGE GF Number: 09 -04451 In addition to the Exclusions and Conditions and Stipulations, your Policy will not cover loss, costs, attorney's fees, and expenses resulting from: 1. The following restrictive covenants of record itemized below (We must either insert specific recording data or delete this exception): In policy to be issued, Item No. 1 will be 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.): (09- 04451.PFD/09 -04451 /36) FORM T -7: Commitment for Title Insurance (Schedule B) RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS SCHEDULE B (Continued) GF Number: 09 -04451 a. Deleted. b. Easement for right -of -way recorded in Volume 2063, Page 351, Deed Records of Tarrant County, Texas. c. Easement for right -of -way recorded in Volume 2063, Page 353, Deed Records of Tarrant County, Texas. d. Easement for right -of -way granted to TEXAS POWER & LIGHT COMPANY by instrument recorded in Volume 8220, Page 437, Deed Records of Tarrant County, Texas. e. Moved to Schedule C. f. Terms, conditions, and stipulations of Oil, Gas and Mineral lease, a Memorandum of which is dated effective June 9, 2008, filed for record under Clerk's File No. D208247624, Deed Records of Tarrant County, Texas. Title to said Lease has not been checked subsequent to the date of recording of the said Memorandum. g. Terms, conditions, and stipulations contained in lease agreement between Jeff Massey and wife, Jodie Lynn Massey, as Lessor, and New Cingular Wireless PCS, LLC, as Lessee, a Memorandum of which is filed for record under Clerk's File No. D212219369, Deed Records of Tarrant County, Texas. h. Deleted. i. Interest in all water, oil, gas, and other minerals as reserved in Deed in Settlement of Condemnation recorded under Clerk's File No. D213 , 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. j. Terms, conditions and stipulation of that certain Non - Exclusive Utility and Drainage Easement Agreement in Settlement of Condemnation from Brian Jeffrey Massey a /ka/ Jeff Massey to The City of Southlake, dated May _, 2013, filed for record under Clerk's File No. 213 , Deed Records of Tarrant County, Texas. k. Terms, conditions and stipulationis of that certain Non - Exclusive Retaining Wall Easement Agreement in Settlement of Condemnation from Brian Jeffrey Massey a/ka/ Jeff Massey to The City of Southlake, dated May , 2013, filed for record under Clerk's File No. 213 , Deed Records of Tarrant County, Texas. (09- 04451.PFD/09 -04451 /36) FORM T -7: Commitment for Title Insurance (Schedule B) RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS SCHEDULE C GF Number: 09 -04451 Your Policy will not cover loss, costs, attorney's fees, and expenses resulting from the following requirements that will appear as Exceptions in Schedule B of the Policy, unless you dispose of these matters to our satisfaction, before the date the Policy is issued: 1. Documents creating your title or interest must be approved by us and must be signed, notarized and filed for record. 2. Satisfactory evidence must be provided that: - no person occupying the land claims any interest in that land against the persons named in paragraph 3 of Schedule A, - all standby fees, taxes, assessments and charges against the property have been paid, - all improvements or repairs to the property are completed and accepted by the owner, and that all contractors, sub - contractors, laborers and suppliers have been fully paid, and that no mechanic's, laborer's or materialmen's liens have attached to the property, - there is legal right of access to and from the land, - (on a Mortgagee Policy only) restrictions have not been and will not be violated that affect the validity and priority of the insured mortgage. 3. You must pay the seller or borrower the agreed amount for your property or interest. 4. Any defect, lien or other matter that may affect title to the land or interest insured, that arises or is filed after the effective date of this Commitment. 5. OTHER SPECIFIC EXCEPTIONS: a. i. Unless otherwise requested in writing prior to closing of the subject transaction, all Endorsements to each Loan Policy of Title Insurance issued pursuant to this Commitment able to be incorporated by reference will be so incorporated in each said Loan Policy. ii. The Company shall follow the Rules as set out by the Texas Department of Insurance in disbursing the funds provided by the Assured and /or Insured on Schedule A of this Commitment. Good Funds shall be as defined in Rule P -27; however, the Company requires that such funds be "collected funds" prior to disbursement, except for funds delivered to the Company by bank wire, cashiers check or cash. The Company does not accept any ACH (Automated Clearing House) funds of any type or form. The Company's wire transfer instructions are attached to this commitment. iii. Your policy will contain an arbitration provision. It allows you or the Company to require arbitration if the amount of insurance is $2,000,000 or less. If you want to retain your right to sue the Company in case of a dispute over a claim, you must request deletion of the arbitration provision before the policy is issued. You can do this by signing the enclosed form and returning it to the Company at or before the closing of your real estate transaction. (Not applicable to Residential Owner Policy) iv. The Contract you entered into agreeing to purchase the property described in Schedule A of this Commitment may provide that the standard Owner Title Policy contains an exception as to "discrepancies, conflicts, shortages in area or boundary lines, encroachments or protrusions, or overlapping of improvements ", and that Buyer, at Buyer's expense, may have the exception amended to read, "shortages in area ", thereby giving you full coverage for these matters. Also, the Texas Title Insurance Information portion of this Commitment for Title Insurance advises the Insured that the Policy will insure against loss because of such discrepancies or conflicts in boundary lines, encroachment or protrusions, or overlapping of improvements, so long as a survey is provided that is acceptable to the Company, and an additional premium for the coverage is paid. The Owner Policy of Title Insurance to be issued in this transaction will contain the coverage described in the above paragraph, and the Insured will be charged the additional premium promulgated by the Texas Department of Insurance, unless an acceptable survey is not furnished, or, on or before the date of closing, the Insured advises the Company in writing that the Insured rejects this coverage. (Applies to the Owner Title Insurance Policy only) v. The Texas Title Insurance Information portion of this Commitment advises the Insured that the Policy is not an abstract of title and that the Company does not have an obligation to determine the ownership of any mineral interest(s). In addition, it states that minerals and mineral rights may not be covered by the Policy and that the Company may include an exclusion or exception as to minerals and mineral rights in the Policy. In the event the Company issues the Policy with an exclusion or exception to mineral and mineral rights, optional endorsements insuring certain risks involving minerals and the use of improvements (excluding lawns, shrubbery and trees) and permanent buildings, as applicable for the nature of the property to be insured, may be available upon payment of an additional premium. However, if the Policy is issued with an exclusion or exception as to minerals and mineral rights, neither this Policy, nor the optional endorsements insure that the Insured has title to the minerals or mineral rights related to the surface estate. The Owner's Policy of Title Insurance to be issued in this transaction will contain the coverage described in the above paragraph, and the Insured will be charged the additional premium promulgated by the Texas Department of Insurance, unless, on or before the date of closing, (i) the Company chooses not to issue such coverage or, (ii) the Insured advises the Company in writing that the Insured rejects this coverage. (Applies to the Owner's Policy of Title Insurance only.) vi. All oil, gas, and /or other reservations created at closing of the subject transaction shall be included as an exception in the Policy /Policies issued. e. Deleted. f. Lis Pendens dated June 29, 2011, and filed for record under Clerk's File No. D211154831, Lis Pendens Records of Tarrant County, Texas, regarding Cause No. 2011 - 003365 -3, styled City of Southlake, Texas vs. Brian Jeffrey Massey a /k/a Jeff Massey. NOTE: Require dismissal with all costs paid or final judgment in favor of record owner to be submitted to examination. g. Deed of Trust dated October 19, 2012, from BRIAN JEFFREY MASSEY to KEVIN M. HOOD, Trustee, securing the payment of one note of even date therewith in the original principal sum of $500,000.00, payable to STATE BANK AND TRUST COMPANY, said Deed of Trust filed for record under Clerk's File No. D212292706, Deed Records of Tarrant County, Texas; including, but not limited to, the due on sale provisions, if any, contained in said Deed of Trust, and consequences of default arising from failure to obtain lender's written consent to the insured transaction. h. Deed of Trust dated December 19, 2012, from BRIAN JEFFREY MASSEY to KEVIN HOOD, Trustee, securing the payment of one note of even date therewith in the original principal sum of $2,100,000.00, payable to STATE BANK & TRUST COMPANY, DALLAS, said Deed of Trust filed for record under Clerk's File No. D212312620, Deed Records of Tarrant County, Texas; including, but not limited to, the due on sale provisions, if any, contained in said Deed of Trust, and consequences of default arising from failure to obtain lender's written consent to the insured transaction. Deed of Trust dated October 19, 2012, from BRIAN JEFFREY MASSEY to KEVIN M. HOOD, Trustee, securing the payment of one note of even date therewith in the original principal sum of $1,200,000.00, payable to STATE BANK AND TRUST COMPANY, said Deed of Trust filed for record under Clerk's File No. D212292261, Deed Records of Tarrant County, Texas; including, but not limited to, the due on sale provisions, if any, contained in said Deed of Trust, and consequences of default arising from failure to obtain lender's written consent to the insured transaction. Subordination Agreement by and between STATE BANK & TRUST COMPANY, DALLAS and STATE BANK & TRUST COMPANY, DALLAS, filed for record under Clerk's File No. D212312621, Deed Records of Tarrant County, Texas. j. Uniform Commercial Code Financing Statement filed for record on December 31, 2012, under Clerk's File No. D212318715, Deed of Trust Records of Tarrant County, Texas, executed by JEFF MASSEY REAL ESTATE, LLC to STATE BANK AND TRUST COMPANY. k. Deleted. I. Terms, conditions, and stipulations contained in unrecorded lease agreement between BRIAN JEFFREY MASSEY, as Lessor, and MASCO SERVICE CORP., as Lessee, dated June 1, 2001, as referenced in Lease and Rental Assignment and Security Agreement recorded in Volume 16888, Page 191, Deed Records of Tarrant County, Texas, as affected by instrument(s) filed for record under Clerk's File No(s). D208275040, Deed Records of Tarrant County, Texas. COMMITMENT FOR TITLE INSURANCE SCHEDULE D GF Number: 09 -04451 Pursuant to the requirements of Rule P -21, Basic Manual of Rules, Rates and Forms for the writing of Title Insurance in the State of Texas, the following disclosures are made: 1. The following individuals are directors and /or officers, as indicated of CHICAGO TITLE INSURANCE COMPANY, a Missouri Corporation The shareholders owning or controlling, directly or indirectly, ten (10 percent), or more of the shares of Chicago Title Insurance Company: CHICAGO TITLE AND TRUST COMPANY, an Illinois Corporation The names of the Directors of Chicago Title Insurance Company: Christopher Abbinante John A. Wunderlich Erika Meinhardt Raymond R. Quirk Roger S. Jewkes Anthony J. Park Alan. L. Stinson Thomas E. Evans, Jr. The names of the president, the executive or senior vice- president, the secretary and the treasurer of Chicago title Insurance Company: Chairman of the Board, President and Chief Executive Officer Raymond R. Quirk Executive Vice President and Regional Manager J. Gilbert Ernst Vice President and Corporate Secretary Fernando Velez, Jr. Vice President and Treasurer Patrick G. Farenga 2. The following disclosures are made by the Title Insurance Agent issuing this commitment: RATTIKIN TITLE COMPANY, a Texas corporation, Title Insurance Agent The names of each shareholder, owner, partner, or other person having, owning or controlling one (1) percent or more of the Title Insurance Agent that will receive a portion of the premium are as follows: Jack Rattikin, Jr., Jack Rattikin III, Alicia Rattikin Lindsey, Jeffrey Alan Rattikin and Allyson Rattikin Grona The names of the president, the executive or senior vice- president, the secretary and the treasurer of Rattikin Title Company: Jack Rattikin, Jr., Chairman of the Board; Jack Rattikin III, President and CEO; Larry Townsend, Senior Vice President; Brian Grona, Senior Vice President; Mac Miles, Senior Vice President; Ronald C. Gamill, Senior Vice President and Treasurer; Diane Harris, Vice President and Secretary; Jack Rattikin, Jr., Director; Glenda S. Rattikin, Director; Jack Rattikin III, Director; Alicia Rattikin Lindsey, Director; Jeffrey Alan Rattikin, Director; and Allyson Rattikin Grona, Director 3. You are entitled to receive advance disclosure of settlement charges in connection with the proposed transaction to which this commitment relates. Upon your request, such disclosure will be made to you. Additionally, the name of any person, firm or corporation receiving a portion of the premium from the settlement of this transaction will be disclosed on the closing or settlement statement. You are further advised that the estimated title premium* is: Owner's Policy $ 2,958.00 Loan Policy $ 0.00 Endorsement Charges $ 0.00 Total $ 2,958.00 Of this total amount: 15% will be paid to the policy issuing Title Insurance Company; 85% will be retained by the issuing Title Insurance Agent; and the remainder of the estimated premium will be paid to other parties as follows: Amount To Whom For Services *The estimated premium is based upon information furnished to us as of the date of this Commitment for Title Insurance. Final determination of the amount of the premium will be made at dosing in accordance with the Rules and Regulations adopted by the Commissioner of Insurance. This commitment is invalid unless the insuring provisions and Schedules A, B, and C are attached. FORM T -7: Commitment for Title Insurance Schedule D (09- 04451.PFD/09- 04451/36) Rev. 02 -01 -10 RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS DELETION OF ARBITRATION PROVISION (Not applicable to the Texas Residential Owner Policy) Arbitration is a common form of alternative dispute resolution. It can be a quicker and cheaper means to settle a dispute with your Title Insurance Company. However, if you agree to arbitrate, you give up your right to take the Title Company to court and your rights to discovery of evidence may be limited in the arbitration process. In addition, you cannot usually appeal an arbitrator's award. Your policy contains an arbitration provision (shown below). It allows you or the Company to require arbitration if the amount of insurance is $2,000,000 or Tess. If you want to retain your right to sue the Company in case of a dispute over a claim, you must request deletion of the arbitration provision before the policy is issued. You can do this by signing this form and returning it to the Company at or before the closing of your real estate transaction or by writing to the Company. The arbitration provision in the Policy is as follows: "Either the Company or the Insured may demand that the claim or controversy shall be submitted to arbitration pursuant to the Title Insurance Arbitration Rules of the American Land Title Association ( "Rules "). Except as provided in the Rules, there shall be no joinder or consolidation with claims or controversies of other persons. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the Insured arising out of or relating to this policy, any service in connection with its issuance or the breach of a policy provision, or to any other controversy or claim arising out of the transaction giving rise to this policy. All arbitrable matters when the Amount of Insurance is in excess of $2,000,000 shall be arbitrated only when agreed to by both the Company and the Insured. Arbitration pursuant to this policy and under the Rules shall be binding upon the parties. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court of competent jurisdiction." SIGNATURE DATE FORM T -7: Commitment for Title Insurance (Deletion of Arbitration Provision) (09- 04451.PFD/09- 04451/27) Rev. 05 -01 -08 RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS Rattikin Title Company Privacy Statement Rattikin Title Company and its subsidiaries ( "RTC ") respect the privacy and security of your non - public personal information ( "Personal Information ") and protecting your Personal Information is one of our top priorities. This Privacy Statement explains RTC's privacy practices, including how we may use the Personal Information we receive from you and from other specified sources, and to whom it may be disclosed. RTC follows the privacy practices described in this Privacy Statement and, depending on the business performed, RTC companies may share information as described herein. Personal Information Collected We may collect Personal Information about you from the following sources: • Information we receive from you on applications or other forms, such as your name, address, social security number, tax identification number, asset information, and income information; • Information we receive from you through our Internet websites, such as your name, address, email address, Internet Protocol address, the website links you used to get to our websites, and your activity while using or reviewing our websites; • Information about your transactions with or services performed by us, our affiliates, or others, such as information concerning your policy, premiums, payment history, information about your home or other real property, information from lenders and other third parties involved in such transaction, account balances, and credit card information; and • Information we receive from consumer or other reporting agencies and publicly recorded documents. Disclosure of Personal Information We may provide your Personal Information (excluding information we receive from consumer or other credit reporting agencies) to various individuals and companies, as permitted by law, without obtaining your prior authorization. Such laws do not allow consumers to restrict these disclosures. Disclosures may include, without limitation, the following: • To insurance agents, brokers, representatives, support organizations, or others to provide you with services you have requested, and to enable us to detect or prevent criminal activity, fraud, material misrepresentation, or nondisclosure in connection with an insurance transaction; • To third -party contractors or service providers for the purpose of determining your eligibility for an insurance benefit or payment and /or providing you with services you have requested; • To an insurance regulatory authority, or a law enforcement or other governmental authority, in a civil action, in connection with a subpoena or a governmental investigation; • To companies that perform marketing services on our behalf or to other financial institutions with which we have joint marketing agreements; and /or • To lenders, lien holders, judgment creditors, or other parties claiming an encumbrance or an interest in title whose claim or interest must be determined, settled, paid or released prior to a title or escrow closing. We may also disclose your Personal Information to others when we believe, in good faith, that such disclosure is reasonably necessary to comply with the law or to protect the safety of our customers, employees, or property and /or to comply with a judicial proceeding, court order or legal process. Disclosure to Affiliated Companies - We are permitted by law to share your name, address and facts about your transaction with other RTC companies, such as insurance companies, agents, and other real estate service providers to provide you with services you have requested, for marketing or product development research, or to market products or services to you. We do not, however, disclose information we collect from consumer or credit reporting agencies with our affiliates or others without your consent, in conformity with applicable law, unless such disclosure is otherwise permitted by law. Disclosure to Nonaffiliated Third Parties - We do not disclose Personal Information about our customers or former customers to nonaffiliated third parties, except as outlined herein or as otherwise permitted by law. Privacy Statement (09- 04451.PFD/09- 04451/27) Rev. 05 -01 -08 RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS Confidentiality and Security of Personal Information We restrict access to Personal Information about you to those employees who need to know that information to provide products or services to you. We maintain physical, electronic, and procedural safeguards that comply with federal regulations to guard Personal Information. Access to Personal Information/ Requests for Correction, Amendment, or Deletion of Personal Information As required by applicable law, we will afford you the right to access your Personal Information, under certain circumstances to find out to whom your Personal Information has been disclosed, and request correction or deletion of your Personal Information. However, RTC's current policy is to maintain customers' Personal Information for no less than your state's required record retention requirements for the purpose of handling future coverage claims. For your protection, all requests made under this section must be in writing and must include your notarized signature to establish your identity. Where permitted by law, we may charge a reasonable fee to cover the costs incurred in responding to such requests. Please send requests to: Rattikin Title Company 201 Main Street, Suite 800 Fort Worth, Texas, 76102 Attn: Diane Harris Changes to this Privacy Statement This Privacy Statement may be amended from time to time consistent with applicable privacy laws. When we amend this Privacy Statement, we will post a notice of such changes on our website. The effective date of this Privacy Statement, as stated above, indicates the last time this Privacy Statement was revised or materially changed. Privacy Statement (09- 04451.PFD/09- 04451/27) Rev. 05 -01 -08 RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS TEXAS TITLE INSURANCE INFORMATION (Continued) You can get a copy of the policy form approved by the Texas Department of Insurance by calling the Title Insurance Company at (800)442 -4303 or by calling the title insurance agent that issued the Commitment. The Texas Department of Insurance may revise the policy form from time to time. You can also get a brochure that explains the policy from the Texas Department of Insurance by calling (800)252 -3439. Before the Policy is issued, you may request changes in the Policy. Some of the changes to consider are: -- Request amendment of the "area and boundary" exception (Schedule B, paragraph 2). To get this amendment, you must furnish a survey and comply with other requirements of the Company. On the Owner Policy, you must pay an additional premium for the amendment. If the survey is acceptable to the Company and if the Company's other requirements are met, your Policy will insure you against loss because of discrepancies or conflicts in boundary lines, encroachments or protrusions, or overlapping of improvements. The Company may then decide not to insure against specific boundary or survey problems by making special exceptions in the Policy. Whether or not you request amendment of the "area and boundary" exception, you should determine whether you want to purchase and review a survey if a survey is not being provided to you. - -Allow the Company to add an exception to "rights of parties in possession." If you refuse this exception, the Company or the title insurance agent may inspect the property. The Company may except to and not insure you against the rights of specific persons, such as renters, adverse owners or easement holders who occupy the land. The Company may charge you for the inspection. If you want to make your own inspection, you must sign a Waiver of Inspection form and allow the Company to add this exception to your Policy. The entire premium for a Policy must be paid when the Policy is issued. You will not owe any additional premiums unless you want to increase your coverage at a later date and the Company agrees to add an Increased Value Endorsement. CONDITIONS AND STIPULATIONS 1. If you have actual knowledge of any matter which may affect the title or mortgage covered by this Commitment, that is not shown in Schedule B, you must notify us in writing. If you do not notify us in writing, our liability to you is ended or reduced to the extent that your failure to notify us affects our liability. If you do notify us, or we learn of such matter, we may amend Schedule B, but we will not be relieved of liability already incurred. 2. Our liability is only to you, and others who are included in the definition of Insured in the Policy to be issued. Our liability is only for the actual loss incurred in your reliance on this Commitment to comply with its requirements or to acquire the interest in the land. Our liability is limited to the amount shown in Schedule A of this Commitment and will be subject to the following terms of the Policy: Insuring Provisions, Conditions and Stipulations, and Exclusions. E"; 'z i z 1. N W V • �Ne c) a en v w ` o CO Z ti W 0 C" 1- F" t,) Q 0 a A < - mW IN �+ E C W U ° o Jo Os 0 ~ J . 1NS z Q " ce o 1 IMPORTANT NOTICE 1 FOR INFORMATION, OR TO MAKE A COMPLAINT CALL OUR TOLL -FREE TELEPHONE NUMBER 1 1- 800 - 442 -4303 i ALSO YOU MAY CONTACT THE TEXAS DEPARTMENT OF INSURANCE AT 1- 800 -252 -3439 to obtain information on: 1. filing a complaint against an insurance company or agent, 1 . whether an insurance company or agent is licensed, 3. complaints received against an insurance company or agent, I I 4. policyholder rights, and j i 5. a list of consumer publications and services available through the Department. YOU MAY ALSO WRITE TO THE TEXAS DEPARTMENT OF INSURANCE P.O. BOX 149104 AUSTIN, TEXAS 78714 -9104 FAX NO. (512) 475 -1771 1 AVISO IMPORTANTE j { PARA INFORMACION, 0 PARA SOMETER UNA QUEJA LLAME AL NUMERO GRATIS '1 1- 800 - 442 -4303 i TAMBIEN PUEDE COMUNICARSE CON EL DEPARTAMENTO DE SEGUROS DE TEXAS AL 1- 800 - 252 -3439 para obtener informacit n sobre: 1. como someter una queja en contra de una compania de seguros o agente de seguros, 2. si una compania de seguros o agente de seguros tiene licencia, 3. quejas recibidas en contra de una compafifa de seguros o agente de seguros, 4. los derechos del asegurado, y 5. una lista de publicaciones y servicios para consumidores disponibles a traves del Departamento. TAMBIEN PUEDE ESCRIBIR AL DEPARTAMENTO DE SEGUROS DE TEXAS P.O. BOX 149104 AUSTIN, TEXAS 78714 -9104 FAX NO. (512) 475 -1771 SETTLEMENT AGREEMENT EXHIBIT Q PARTIAL RELEASE OF LIEN AND LIENHOLDER CONSENT AND SUBORDINATION TO EASEMENT AGREEMENTS Date: May 16, 2013 Holder of Notes and Liens: State Bank and Trust Company Holder's Mailing Address: 2517 Midway Road, Carrolton, TX 75006 Affected Liens: Note No. 101329: Date: October 19, 2012 Original principal amount: $500,000 Borrower: Masco Service Corporation Lender: State Bank and Trust Company Maturity date: October 19, 2017 Deed of Trust: Date: October 19, 2012 Grantor of Lien: Brian Jeffrey Massey Lender: State Bank and Trust Company Trustee: Kevin M. Hood Recording information: The Deed of Trust is recorded in the deed records of Tarrant County, Texas, as Document No. D21.292706 Note No. 101311: Date: October 19, 2012 Original principal amount: $1,200,000 (maximum credit limit) Borrower: Masco Service Corporation Lender: State Bank And Trust Company Maturity date: November 19, 2013 Deed of Trust: Date: October 19, 2012 Grantor of Lien: Brian Jeffrey Massey Lender: State Bank and Trust Company Trustee: Kevin M. Hood Recording information: The Deed of Trust is recorded in the deed records of Tarrant County, Texas, as Document No. D212292261 Note: Date: December 19, 2012 Original principal amount: $2,100,000 Borrower: Jeff Massey Real Estate, LLC Lender: State Bank and Trust Company Maturity date: December 19, 2022 1 EXHIBIT 33428.7 Deed of Trust: Date: December 19, 2012 Grantor of Lien: Brian Jeffiey Massey Lender: State Bank and Trust Company Trustee: Kevin M. Hood Recording information: The Deed of Trust is recorded in the deed records of Tarrant County, Texas, as Document No. D212312620 Financing Statement: Date: Recorded December 31, 2012 . Debtor: Jeff Massey Real Estate, LLC Additional Debtor: Brian Jeff Massey Secured Party: State Bank and Trust Company Recording information: The Financing Statement is recorded in the deed records of Tarrant County, Texas, as Document No. D212318715 Property (including any improvements) to be released from the Affected Liens (the "Right -Of -Way Property "): See Exhibit 1, attached hereto and incorporated herein for all purposes. Easement Agreements: A Non - Exclusive Utility and Drainage Easement Agreement In Settlement Of Condemnation in favor of the City of Southlake in the form attached as Exhibit 2, and covering the property described in Exhibit A to Exhibit 2; and A Non - Exclusive Retaining Wall Easement Agreement In Settlement Of Condemnation in favor of the City of Southlake in the form attached as Exhibit 3, and covering the property described in Exhibit A to Exhibit 3. Property subject to easement agreements and the subject of lienholder's approval and consent (the "Easement Property "): See Exhibit A to Exhibit 2 and Exhibit A to Exhibit 3, attached hereto and incorporated herein for all purposes. For value received, State Bank And Trust Company, the Holder of the above- referenced Notes and Liens, releases the Right -Of -Way Property from the Liens and from all liens held by the Holder of the Notes and Liens, without regard to how they were created or evidenced. This partial release does not release the remainder of the secured property described in the lien documents referenced above. Also for value received, State Bank And Trust Company, the Holder of the above - referenced Notes and Liens, consents to the grant of easements to the City of Southlake, Texas ( "Grantee ") on, under, and across the Easement Property, consents to the terms and conditions stated in the documents granting the easements, and subordinates all of Holder's rights and liens to the rights and interests of the Grantee in the Easement Property, so that a foreclosure of the Holder's liens, or any one of them, will not extinguish the rights and interests granted to such Grantee in the Easements Property. When the context requires, singular nouns and pronouns include the plural. STATE BANK AND TRUST COMPANY By: Its: ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared , 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 /she executed the same for the purposes and consideration therein expressed, and in the capacity therein expressed, with full authority to so act. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of May, 2013. . My Commission Expires: Notary Public in and for the State of Texas Typed or Printed Name of Notary 3 33428.7 • • EXHIBIT "A" LEGAL DESCRIPTION PERMANENT RIGHT-OF-WAY NORTH KIMBALL AVENUE PARCEL 15 BEING 0 316 acre of land located in the FRANCIS THROOP SURVEY, ABSTRACT No 1511, Southiake, Tarrant Couoty, Texas, and being a portion of a tract of and conveyed to Jeff Massey, by the deed recorded in Volume 16881 Page 198, of the Deed Records of Tarrant County, Texas. Said 0 0.816 acre c +f land being more particularly described by metes and bounds as follows. BEGINNING at a "PK" nail found at the Southeast corner of said Massey Tract, and lying at the intersection of the centerline of North Kimball Avenue, with the centerline of E. Highland Street, THENCE N 89' 39' 25" W 331 64 feet, along the South boundary line of said Massey Tract, and along the centerline of E. Highland Street, THENCE N 00° 35' 06" W 34.98 feet. along the West boundary line of said Massey Tract, to a W iron rod -narked "Britain & Crawford' set, in the new North right -of -way line of said E. Highland Street; THENCE S 89° 38' 59" E 269.97 feet, along the new North right -of -way line of said E. Highland Street. to a iron rod marked "Britain & Crawford' set in the new West right -of -way line of said North Kimball Street; THENCE along the new West right -of -way line of said North Kimball Street, as follows 1. N 45' 00' 00' E 19.71 feet to a W iron rod marked 'Brittain & Crawford" set; 2. N 00` 49' 31 "W 476.08 feet, to a '' /" iron rod marked 'Britain & Crawford" set in the North boundary line of said Massey Tract. lying in the South boundary fine of a tract of land conveyed to Richard Holliday and wife, Mary Ann Holliday. by the deed recorded in Volume 14325, Page 524, by the Deed Records of Tarrant County, Texas; THENCE S 89' 45' 37" E 49.42 feet, along the North boundary line of said Massey Tract. and the South boundary line of said Holliday Tract. to a `PK" nail found at the Northeast comer of said Massey Tract, tying in the centerline of said North Kimball Avenue; THENCE S 00° 36' 17" E 527.10 feet, along the East boundary line of said Massey Tract, and the centerline of said North Kimball Avenue, to the POINT OF BEGINNING, containing 0 816 acre (35,543 square feet) ci land. EXHIBIT GGyl n� ,3ak;nrPFat�,zyak':ra:rvvt� 0 0 AREA TABLE RICHA,RD HOLLIDAY AND WIT, ul •:1 0.616 ACRE TOTAL MARY ANN HOLLIDAY (35,543 SO.FT.) VOL 14325. PC. 524, D.R.T C.1. •,-. ' ■ 0,478 ACRE IN S 89 SI 1 1 7 -. .. PRESCRIPTIVE . RIGHT-OF-WAY 49.42' "PK NAL FOUND ■ , L.._ _ _ ____ 0.338 ACRE NET r , TUMBLEWEED (14,700 SO.FT.) , c's 1/2..lics ' 5 0* TRAIL ,a.• _.__ c...)J. PERMANENT [ A2 . RICHT-OF-WAY LINE ol .c.- •cr o az ;10 (c 0 t-i S 4,.: e- c-4 <, J EFF MASSEY N :i 141 4 VOL 16881, PG. 138 D.R.T.C.T. c Y; LOT 3, THE HIU AI:DITION '§ VOL. 388-159, PC. 96 P.R.T.0 T. " E 1 •••.' ..- > t... ne- w , Pt 4 O CRIPPLE CREEK 'C' .44- ini C4 re) LANE e . LA., 0 , 0 cL.4 ?.. 0 0 E2 0 I ,' z PERMANENT (..: I 4> RIGHT-Or-WAY NE N 45'00 N 00°35'06"W 19.71' 1 34.98' i S 89°38'59"E I 1/2"i tP.S 269.97' 1, t POINT OF - riz - iRs - - BEGINNING s...IRA UNE es4 Cr_NTERLINE ROAD rq ..,.......... "PK" Mt. POUND _N 89° 39 '251.'W___33 ' i I IN CENTERUNE "PI<'` NAIL FOUNZ,' IN 1-S4 -1- I 1 INTmsE.cPoN CENTERLINE 0 ROAD PRESCRIVIIVE 4.1Ck cs ; RIC.14T-OF-wAT UNE NsP SURYEYE) oN THE GROUND .c• vs? OCTOBER 7. 2009 I I A'N:S.,' C4- ;`,, .'oi. •c x ..,, J L.. 'JAS L A REMAIN >;.■ ...,v• '".0 1674 , 't 4414ES L ORMAN '''' PRC.I.PERTY CORNER NOTE REGISTERED PROFMSIONAL ,,,,, suOr ." WC SURVEYOR ''',..- ,1"-- ALL PROPERTY CORNERS SET ARE 1/2" IRON RODS STATE OF TEXAS NO. 1674 '" (1/2"IRS) WITH CAP MARKED "Ern AN b, CRAWFORD' CITY OF SOUTHLAKE 1400 4AIN STREET, SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET EXHIBIT "B" 1 F.° 1 b BRrrrAni & CRATFORD LAND SURV:YING A ;_.,,.., TOPOGRAPIC MAPPING icor, 519•0111 - 95 1911 9(1,9111 PERMANENT RIGHT—OF—WAY 0.816 ACRE OF LAND LOCATED IN THE v , II 03 -- X FAX 4.99 (511) $2,-910 FRANCIS THROOP SURVEY W 9 R. 5115 11119 . MU Se". 911.159.1 90t1 •9991/). rt v. 19,.0 ABSTRACT No. 1511 SOUTHLAKE, TARRANT COUNTY, \ KIIJBAt; \ __Re A \ TEXAS SCALE 1 " - 100' .sarcigin NON - EXCLUSIVE UTILITY AND DRAINAGE EASEMENT AGREEMENT IN SETTLEMENT OF CONDEMNATION STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TARRANT § Effective as of May —, 2013 (the "Effective Date ") that Brian Jeffrey Massey a/kla/ Jeff Massey, whose mailing address is 1200 . Kimball Avenue, Southlake, TX 76092, hereinafter called "Grantor," for and in consideration of Ten and No /l 00 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 and Drainage Easement Agreement In Settlement Of Condemnation (the "Permanent Utility and Drainage Easement Agreement ") has granted, and by these presents does grant unto said Grantee a non- exclusive utility and drainage easement under and across a strip of land depicted as "Permanent Utility and Drainage Easement Property" on Exhibit A and with a legal description of the Permanent Utility and Drainage Easement Property attached to this Permanent Utility and Drainage Easement Agreement as Exhibit B (the "Permanent Utility and Drainage Easement Property ") for (collectively the "Facilities "): (i) below- ground water, sanitary sewer, and water drainage lines and other below - ground city owned utilities; (ii) drain inlets and manholes in connection with, and as is necessary for, the Kimball Avenue road expansion project (the "Project "); and (iii) other below- ground franchise and below- ground public utilities, and in connection with which the parties are entering into this Permanent Utility and Drainage 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 Utility and Drainage Easement Property for the purpose of and with the right to construct, reconstruct, maintain, repair, and make connections to the Facilities. Grantor reserves the right to use the Permanent Utility and Drainage Easement Property for all purposes that are not inconsistent with the specific rights granted to Grantee under this Permanent Utility and Drainage 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 Utility and Drainage 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, fiber and communication 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 Project, and to cooperate with Grantor, Grantor's 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 Utility and Drainage Easement Property for landscaping, 1 EXHIBIT 32474.8 � pC.. signage, or lighting, other than grass cover on all parts of the Permanent Utility and Drainage Easement Property except that part on which are located above - ground facilities, without Grantee's written approval, which approval will not be unreasonably withheld, provided, however, that Grantor shall have the right to plant flowers and shrubs (but no trees) on the Permanent Utility and Drainage Easement Property. No later than the conclusion of the work on the Project, Grantee will cover with St. Augustine grass sod of a good quality all parts of the Permanent Utility and Drainage Easement Property except that part on which are located above - ground Facilities. Notwithstanding anything else in this Permanent Utility and Drainage Easement Agreement, Grantor shall have the right to pave (with concrete, asphalt, or other material), maintain, reconstruct, and repair the Permanent Utility and Drainage 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 Utility and Drainage 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 Utility and Drainage Easement Area. In the event Grantee's use of the Permanent Utility and Drainage Easement Area causes any damages to the Allowable Improvements, Grantee agrees to restore within a reasonable time, at Grantee's soles cost, the Allowable Improvements to their pre - damage condition. However, nothing contained in this Agreement shall constitute any required governmental approval of any contemplated improvements, including pavement, or otherwise relieve Grantor from complying with any applicable ordinances or obtaining any required permits and /or approvals prior to installation or construction of any proposed improvement, including paving, unless otherwise excused by the Settlement Agreement in Lieu of Condemnation between Grantor and Grantee or applicable law. As a material part of the consideration for this Permanent Utility and Drainage Easement Agreement, Grantee agrees that the use of the Permanent Utility and Drainage Easement Property by Grantee and by Grantee's successors and permitted assigns shall be restricted as follows: the Permanent Utility and Drainage Easement Property shall only be used for the Facilities. Grantor 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 Utility and Drainage Easement Property without the prior written consent of Grantor or Grantor's successor(s) in interest, which consent may be withheld for any reason whatsoever, subject to the conditions and exceptions set forth below. Grantor hereby consents to Grantee's agents, contractors, and franchise and public utility companies and their agents and contractors, performing work for Grantee on the Permanent Utility and Drainage Easement Property pursuant to the terms of this Permanent Utility and Drainage Easement Agreement. Grantee further may not assign or sell this Permanent Utility and Drainage Easement Agreement or any rights related to the Permanent Utility and Drainage Easement Property except as set out below 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 Utility and Drainage 2 32474.8 Easement Agreement. Notwithstanding any of the above, however, to the extent that city ordinance or other governmental law or regulation authorizes or permits the installation of underground franchise or other underground public utilities in city -owned utility easements, this provision shall not prohibit or bar such use. Also, nothing contained in this Agreement shall prohibit Grantee from assigning the Permanent Utility and Drainage Easement to another governmental unit or entity that assumes control of the adjacent right -of -way, including but not limited to Tarrant County and the Texas Department of Transportation. This Permanent Utility and Drainage 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 Utility and Drainage Easement Agreement is subject to: a) any and all of the following held or claimed by a governmental entity or utility provider, 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; 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 Utility and Drainage 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, provided, however to the extent that paving or landscaping existing as of the Effective Date overlaps or encroach upon the Permanent Utility and Drainage Easement Property, Grantee may demolish and remove such existing paving or landscaping, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Utility and Drainage Easement Agreement. 3 32474.8 2. The grant of rights under this Permanent Utility and Drainage Easement Agreement is subject to all visible encumbrances on, in, or affecting the Permanent Utility and Drainage Easement Property, Grantor's other property, or any part of any of the foregoing, provided, however that to the extent that paving or landscaping existing as of the Effective Date overlaps or encroach upon the Permanent Utility and Drainage Easement Property, Grantee may demolish and remove such existing paving or landscaping, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Utility and Drainage Easement Agreement. 3. Grantee shall be entitled to use the Permanent Utility and Drainage Easement Property solely for the purposes expressly set forth in this Permanent Utility and Drainage Easement Agreement and for no other purpose. Until a new driveway is constructed from Kimball Avenue across the Permanent Utility and Drainage Easement Property to Grantor's property at a location approved in writing by Grantor, which approval shall not be unreasonably withheld, Grantee shall not close or impede access to Grantor's property over and through the existing driveways from Kimball that crosses the Permanent Utility and Drainage Easement Property, provided, however, Grantee may temporarily close one of Grantor's existing driveways from. Kimball Avenue 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 from Kimball to Grantor's property that is reasonably satisfactory to Grantor. During the Project, Grantee will: (i) provide continuous access from Grantor's property to Highland Street across the existing drive from Grantor's property to Highland Street or an alternative, temporary access drive from Grantor's property to Highland. Street that is reasonably satisfactory to Grantor; ii) provide continuous access to Grantor's entrances to the buildings located on Grantor's property and/or iii) not impede Grantor's sidewalk on the east side of Grantor's property adjacent to Grantor's existing building. Grantee 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 Utility and Drainage 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 encumbrances (except to the extent that paving or landscaping existing as of the Effective Date overlaps or encroach upon the Permanent Utility and Drainage Easement Property in which case Grantee may demolish and remove such existing paving or landscaping, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Utility and Drainage Easement Agreement), that the Permanent Utility and Drainage Easement Property is adequate for Grantee's intended and actual use, and that Grantee's use of the Permanent Utility and Drainage 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 penults and governmental approvals for all activity on or affecting the Pe«uanent Utility and Drainage Easement Property so as to meet all regulatory requirements and shall complete all work in accordance with City of Southlake, Texas specifications, 4 32474.8 requirements, and 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 Utility and Drainage 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 Utility and Drainage Easement Property at the direction or request of Grantee. Further, Grantee shall require its general contractor to obtain adequate insurance covering personal injury, death, and property damage from his /its activities and the activities of its employees, subcontractors, consultants or other agents entering the Permanent Utility and Drainage Easement Property on the Permanent Utility and Drainage Easement Property. Such insurance will be the primary insurance coverage for any claims and Grantor's insurance, if any, shall be considered secondary insurance. 7. Grantee will maintain the Facilities in good condition in accordance with. City of Southlake and any other applicable laws, ordinances, rules, and regulations. Upon completion of any construction, maintenance, repair, removal, replacement, reconstruction or other work on or in the Permanent Utility and Drainage Easement Property, Grantee shall promptly restore that part of the surface of the Permanent Utility and Drainage Easement Property that is not used for above- ground Facilities to a landscaped condition consistent with the Project. If any other portion of Grantor's property outside the Permanent Utility and Drainage 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. Grantor shall be entitled to receive from the City Secretary's office, upon request, copies of all as -built construction drawings for the Facilities to be located on the Permanent Utility and Drainage Easement Property at the later of 60 days after Grantee completes construction and any later reconstruction of the Facilities or 30 days after Grantee receives such drawings. 8. It is expressly understood and agreed that this Permanent Utility and Drainage Easement Agreement does not constitute a conveyance in fee of any part of the Permanent Utility and Drainage 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 Utility and Drainage Easement Property, which rights are expressly retained by Grantor, but only pants the non - exclusive easement rights specifically provided in this Permanent Utility and. Drainage Easement Agreement; if the Permanent Utility and Drainage 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 Utility and Drainage Easement Property, but Grantor shall have the right 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') 5 32474.8 below the surface in a manner which does not enter upon, or interfere with Grantee's rights under this Permanent Utility and Drainage Easement Agreement. 9. Grantee shall not permit to be placed against the Permanent Utility and Drainage 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 Utility and Drainage Easement Property. GRANTEE AGREES, TO THE EXTENT PERMITTED BY LAW, 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 UTILITY AND DRAINAGE EASEMENT PROPERTY. THE INDEMNITY AND OTHER RIGHTS AFFORDED BY THIS SECTION SHALL SURVIVE THE TERMINATION AND EXPIRATION OF THIS PERMANENT UTILITY AND DRAINAGE EASEMENT AGREEMENT. 10. The rights granted under this Permanent Utility and Drainage Easement Agreement are granted until the Facilities or use of the Permanent Utility and Drainage Easement Property shall be Abandoned, and in that event such rights shall cease and all rights granted under this Permanent Utility and Drainage 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 Utility and Drainage Easement Property for the purpose herein granted, for a continuous period of five years and the Grantee agrees that it has no further intent to use the Permanent Utility and Drainage Easement Property for any of the permitted purposes. 11. No termination or expiration of the Permanent Utility and Drainage Easement Agreement shall release Grantee from any liability or obligation under this Permanent Utility and Drainage 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 Utility and Drainage 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 Utility and Drainage 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 such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Permanent Utility and Drainage Easement Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein, and the remaining provisions of this Permanent Utility and Drainage Easement Agreement will remain in effect. 14. This Permanent Utility and Drainage Easement Agreement is not valid or binding on 6 32474 any party unless executed by all of the parties listed below. This Permanent Utility and Drainage 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 Utility and Drainage Easement Agreement shall extend to and be binding upon Grantee and Grantor and their permitted successors and assigns, if any. 15. Grantee agrees and represents that: (i) this Permanent Utility and Drainage Easement Agreement is binding on Grantee 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 Utility and Drainage Easement Agreement, Grantee 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 UTILITY AND DRAINAGE 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, IFANY. 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, limitations, reservations, and exceptions contained in this Permanent Utility and Drainage Easement Agreement, until the Facilities or use of the Permanent Utility and Drainage Easement Property shall be Abandoned as provided in this Permanent Utility and Drainage Easement Agreement, and in that event said Permanent Utility and Drainage Easement Agreement shall cease, all rights herein granted shall terminate, and all rights to use the Permanent Utility and Drainage Easement Property shall automatically revert to Grantor or Grantor's heirs, successors, assigns and/or legal representatives. REMAINDER OF PAGE INTENTIONALLY BLANK 7 32474.8 EXECUTED to be effective as of May _ , 2013. GRANTOR: GRANTEE: BRIAN JEFFREY MASSEY CITY OF SOUTHLAKE, TEXAS 13y: Brian Jeffrey Massey The Honorable John Terrell, Mayor 1200 North Kimball Avenue 1400 Main Street Southlake, Texas 76092 Southlake, Texas 76092 Attest: Alisha Richardson, City Secretary REMAINDER OF PAGE INTENTIONALLY BLANK 8 32474.8 ACKNOWLEDGMENTS STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared BRIAN JEFFREY MASSEY, 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 day of May, 2013. Notary Public in and for The State of Texas My Commission Expires: Typed or Printed Name of Notary STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared the Honorable JOHN TERRELL, Mayor of the City of Southlake, 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, and in the capacity therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of May, 2013. Notary Public in and for The State of Texas My Commission Expires: Typed or Printed Name of Notary 9 32474.8 Exhibit "A" Survey of Permanent Utility and Drainage Easement Property 10 32474.8 . . • 411 `11CHAND HOLUDAT AND Mt L. WARY ANN HOLLIDAY VOL 14375, P.1 574, POINT OF BEGINNIN e , D ■.0.1 CORNER t.r■ MASSLY TRACI V A. 1/2 IRDN ROO SET "Pr' N.A.11. FOUND I _ TUMBLEWEED rq' N TRAIL , 1 S 89°45'37"E ,-- 10.00• I - i --- 4; 42* 4 PERMANENT UTILITY, DRAINAGE 1 pks NEI« AND WALL EASEWEHT 0.11 1 ACRE / 4,830 SC.FT. Lai' cn io JEFF MASSEY N: 9 1 I VOL. 16851, P. 195 N In D.R.T.C.T. -+ 2 1 _CT 3, HE_ MILL iJ11 -... CI VO_. 3BS 7 G T6 P If< I PRiC1 . ' V -ct 0 CRIPPLE CREEK , o . Z LANE o 0 o 0 . ..sy Z cc) I ,e- 1 RC{-OF-WAY lir ■ \ \ S 45°00'00"W L 1 /.7' -% I \ 13.94' • . 5' WEY UNE _ _ L:•: RUAD — -- -.... - — - - — -- - - -- V..)THEAsr cok or ibtST TRACT PC" NAL F CEI.erZR,IN IV RI:1D l . .Y. .,., I , 1 4. c■ %.C. .C %C 0 ' .... 0 . „5... .1"- i ' ■ '' r7P C3RNER 'CT SCALE 1". 100' AJz_ ;- CRS SE; ARE 1/ r FrON■ RODS (1 /2" IRS) WI IH C.-P homc",;) - FIRTTTA.N & CRIICOli117n" CITY OF SOUTHLAKE ,......., 1400 MAIN STREET, SOUTHLAKE, TEXAS, 76092 • , ,..,/, ..--._ NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET EXHIBIT "8 1 Biurrkai & CRAVPORD PERMANENT UTILITY, DRAINAGE I-- — AND WALL EASEMENT 0.111 ACRE OF LAND X . , ,.,,, . Sri • Isom Oa., • wt.:. f 161 (174 .,..., . UJ C.7. 101r, RW.4.1 - 11,15 FRANCIS THROOR SURVEY DO.- .....c.1a*....., AESTRACT No. 151 SOUTHLAKE. TARRANT COUNTY, TEXAS JULY 6, 2010 -ORM Exhibit "B" Legal Description of Permanent Utility and Drainage Easement Property 11 32474.8 • • EXHIBIT 'A" LEGAL DESCRIPTION PERMANENT UTILITY, DRAINAGE AND WALL EASEMENT NORTH KIMBALL AVENUE PARCEL 15 BEING 0.111 acre cf ;and located in the FRANCIS THROOP SURVEY, ABSTRACT No 1511, Southlake, Tarrant County. Texas. and being a portion of a tact cf an conveyed to Jeff Massey, by the deec recorded in Volume 16881, Page 198. of the Deed Records of Tarrant County, Texas, Said 0.111 acre of land Oeing more particularly described by metes and bounds as follows: BEGINNING at a W iron rod marked "Brittain & Crawford" set in the Ncrtll boundary line of said Massey Tract, and lying N 89° 45 37' W 49.42 feet from a ''PK" nail found ;narking the Northeast corner of Said Massey Tract Said Point of Beginning also lying in the new West right-of-way linc of North Kimball Avenue: THENCE S OG` 4g' 31' E 478 03 feet, acrig the new West right-of-way line of said North Kimball Avenue, to a 'A` iron roc marked "Brittan Crawford", set, "it IENCE S 45° 00 G0W 13.94 feet, to a point, THENCE N 36° '9 31 W 457.98 feat. to a pairt in the North boundary ic of said Massey Tract: THENCE 5 89° 45' 37' 9 10.00 feet. along the North boundary iine cf said Massey Tract, b the POINT OF BEGINNING. containing 0 111 acre (4,830 square feet) of and ; EXHIBIT a Exhibit "C" Exceptions To Title From Title Commitment 12 32474.8 SCHEDULE 6 EXCEPTIONS FROM COVERAGE GF Number. 09 -04451 In addition to the Exclusions and Conditions and Stipulations, your Policy will not cover loss, costs, attomey's fees, and expenses resulting from: 1. The following restrictive covenants of record itemized below (We must either insert specific recording data or delete this exception): in policy to be issued, Item No. 1 will be deleted. 2. Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements. ••••• • • 0111:••• • • • •,• • ••• • •. • :a •• • ) 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. !IRA tydye. (Appliub to Muitggyea (T -2) %Ally.)` 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.): (09- 04451.PFD/09- 04451 /30) FORM T -7: Commitment for Title Insurance (Schedule RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS 8) EXHIBIT SCHEDULE B (Continued) GF Number: 09 -04451 a. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the title that would be disclosed by an accurate and complete land survey of the land. (Note: Upon receipt of a survey acceptable to Company, this exception will be deleted. Company reserves the right to add additional exceptions per its examination of said survey.) b. Easement for right -of -way recorded in Volume 2063, Page 351, Deed Records of Tarrant County, Texas. c. Easement for right -of -way recorded in Volume 2063, Page 353, Deed Records of Tarrant County, Texas. d. Easement for right -of -way granted to TEXAS POWER & LIGHT COMPANY by instrument recorded in Volume 8220, Page 437, Deed Records of Tarrant County, Texas. -- -- : _ ._ • • !!!! _ a'-. - ..: . . - •-Memorant tiffl. g. Terms, conditions, and stipulations contained in lease agreement between Jeff Massey and wife, Jodie Lynn Massey, as Lessor, and New Cingular Wireless PCS, LLC, as Lessee, a Memorandum of which is filed for record under Clerk's File No. D212219369, Deed Records of Tarrant County, Texas. • h . - - -'... z•-• -._ - FORM T -7: Commitment for Title Insurance (Schedule (t Y N 04451 XAS B) RATTIKIN TITLE COMPAN, T WORTH, TEXAS EXHIBIT NON - EXCLUSIVE RETAINING WALL EASEMENT AGREEMENT IN SETTLEMENT OF CONDEMNATION STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TARRANT § Effective as of May _ 2013 (the "Effective Date ") that Brian Jeffrey Massey a/k/a/ Jeff Massey, whose mailing address is 1200 Kimball Avenue, Southlake, TX 76092, 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 Retaining Wall Easement Agreement In Settlement Of Condemnation (the "Permanent Retaining Wall Easement Agreement ") has granted, and by these presents does grant unto said Grantee a non - exclusive retaining wall easement under and across a strip of land depicted as "Permanent Retaining Wall Easement Property" on Exhibit A and with a legal description of the Permanent Retaining Wall Easement Property attached to this Permanent Retaining Wall Easement Agreement as Exhibit B (the "Permanent Retaining Wall Easement Property") for a retaining wall and related soil grading and a surface concrete drainage flume to drain water from Grantor's property (the "Facilities ") in connection with, and as is necessary for, the Kimball Avenue road expansion project (the "Project "); pursuant to the terms and conditions set forth below: Together with the right of ingress and egress along and upon the Permanent Retaining Wall Easement Property for the purpose of and with the right to construct, reconstruct, maintain, repair, and make connections to the Facilities. Grantor reserves the right to use the Permanent Retaining Wall Easement Property for all purposes that are not inconsistent with the specific rights granted to Grantee under this Permanent Retaining Wall 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 Retaining Wall Easement Property (to the extent not used by Grantee for above - ground Facilities) for underground telephone cables and conduits, fiber and communication 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 Facilities in accordance with the plans for the currently planned improvements for the Project, and to cooperate with Grantor, Grantor's 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 Retaining Wall Easement Property for landscaping, signage, or lighting, other than grass cover on all parts of the Permanent Retaining Wall Easement Property except that part on which are located above - ground facilities, without Grantee's written approval, which approval will not be unreasonably withheld, provided, however, that Grantor shall have the right to plant flowers and shrubs (but no trees) on the Permanent Retaining Wall Easement 1 EXHIBIT 33215.4 Property. No later than the conclusion of the work on the Project, Grantee will cover with St. Augustine grass sod of a good quality all parts of the Permanent Retaining Wall Easement Property except that part on which is located above - ground Facilities. In the event Grantee's use of the Permanent Retaining Wall Easement Area causes any damages to the Allowable Improvements, Grantee agrees to restore within a reasonable time, at Grantee's soles cost, the Allowable Improvements to their pre - damage condition. However, nothing contained in this Agreement shall constitute any required governmental approval of any contemplated improvements, including pavement, or otherwise relieve Grantor from complying with any applicable ordinances or obtaining any required permits and/or approvals prior to installation or construction of any proposed improvement unless otherwise excused by the Settlement Agreement in Lieu of Condemnation between Grantor and Grantee or applicable law. As a material part of the consideration for this Permanent Retaining Wall Easement Agreement, Grantee agrees that the use of the Permanent Retaining Wall Easement Property by Grantee and by Grantee's successors and permitted assigns shall be restricted as follows: the Permanent Retaining Wall Easement Property shall only be used for the Facilities. Grantor 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 Retaining Wall Easement Property without the prior written consent of Grantor or Grantor's successor(s) in interest, which consent may be withheld for any reason whatsoever, subject to the conditions and exceptions set forth below. Grantor hereby consents to Grantee's agents and contractors performing work for Grantee on the Permanent Retaining Wall Easement Property pursuant to the terms of this Permanent Retaining Wall Easement Agreement. Grantee further may not assign or sell this Permanent Retaining Wall Easement Agreement or any rights related to the Permanent Retaining Wall Easement Property except as set out below 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 Retaining Wall Easement Agreement. Also, nothing contained in this Agreement shall prohibit Grantee from assigning the Permanent Retaining Wall Easement to another governmental unit or entity that assumes control of the adjacent right -of -way, including but not limited to Tarrant County and the Texas Department of Transportation. This Permanent Retaining Wall 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 Retaining Wall Easement Agreement is subject to: a) any and all of the following held or claimed by a governmental entity or 2 33215.4 utility provider, 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; 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 Retaining Wall Easement Property, Grantor's other property, or any part of any of the foregoing; g) any discrepancies, conflicts, or shortages in area or boundary lines; and h) any encroachments or overlapping of improvements, provided, however to the extent that paving or landscaping existing as of the Effective Date overlaps or encroach upon the Permanent Retaining Wall. Easement Property, Grantee may demolish and remove such existing paving or landscaping, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Retaining Wall Easement Agreement. 2. The grant of rights under this Permanent Retaining Wall Easement Agreement is subject to all visible encumbrances on, in, or affecting the Permanent Retaining Wall Easement Property, Grantor's other property, or any part of any of the foregoing, provided, however that to the extent that paving or landscaping existing as of the Effective Date overlaps or encroach upon the Permanent Retaining Wall Easement Property, Grantee may demolish and remove such existing paving or landscaping, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Retaining Wall Easement Agreement. 3. Grantee shall be entitled to use the Pei anent Retaining Wall Easement Property solely for the purposes expressly set forth in this Permanent Retaining Wall Easement Agreement and for no other purpose. Until a new driveway is constructed from Kimball Avenue across the Permanent Retaining Wall Easement Property to Grantor's property at a location approved in writing by Grantor, which approval shall not be unreasonably withheld, Grantee shall not close or impede access to Grantor's property over and through the existing driveways from Kimball that crosses the Permanent Retaining Wall Easement Property, provided, however, Grantee may temporarily close one of Grantor's existing driveways from Kimball Avenue 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 from Kimball to Grantor's property that 3 33215,4 is reasonably satisfactory to Grantor. During the Project, Grantee will: (i) provide continuous access from Grantor's property to Highland. Street across the existing drive from Grantor's property to Highland Street or an alternative, temporary access drive from Grantor's property to Highland Street that is reasonably satisfactory to Grantor; ii) provide continuous access to Grantor's entrances to the buildings located on Grantor's property and /or iii) not impede Grantor's sidewalk on the east side of Grantor's property adjacent to Grantor's existing building. Grantee 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 Retaining Wall 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 encumbrances (except to the extent that paving, driveway, or landscaping existing as of the Effective Date overlaps or encroach upon the Permanent Retaining Wall Easement Property in which case Grantee may demolish and remove such existing paving, driveway, or landscaping, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Retaining Wall Easement Agreement), that the Permanent Retaining Wall Easement Property is adequate for Grantee's intended and actual use, and that Grantee's use of the Permanent Retaining Wall 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 Retaining Wall Easement Property so as to meet all regulatory requirements and shall complete all work in accordance with City of Southlake, Texas specifications, requirements, and contracts. Grantee shall construct, 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 locallaws, statutes, orders, ordinances, rules, regulations, standards, plans, policies and decrees. Grantee shall, in all activities undertaken pursuant to this Permanent Retaining Wall 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 Retaining Wall Easement Property at the direction or request of Grantee. Further, Grantee shall require its general contractor to obtain adequate insurance covering personal injury, death, and property damage from his /its activities and the activities of its employees, subcontractors, consultants or other agents entering the Permanent Retaining Wall Easement Property on the Permanent Retaining Wall Easement Property. Such insurance will be the primary insurance coverage for any claims and Grantor's insurance, if any, shall be considered secondary insurance. 7. Grantee will maintain the Facilities in good condition in accordance with City of Southlake and any other applicable laws, ordinances, rules, and regulations. Upon completion of any 4 33215.4 construction, maintenance, repair, removal, replacement, reconstruction or other work on or in the Permanent Retaining Wall Easement Property, Grantee shall promptly restore that part of the surface of the Permanent Retaining Wall Easement Property that is not used for above - ground Facilities to a landscaped condition consistent with the Project. If any other portion of Grantor's property outside the Permanent Retaining Wall 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. Grantor shall be entitled to receive from the City Secretary's office, upon request, copies of all as -built construction drawings for the Facilities to be located on the Permanent Retaining Wall Easement Property at the later of 60 days after Grantee completes construction and any later reconstruction of the Facilities or 30 days after Grantee receives such drawings. 8. It is expressly understood and agreed that this Permanent Retaining Wall Easement Agreement does not constitute a conveyance in fee of any part of the Permanent Retaining Wall 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 Retaining Wall Easement Property, which rights are expressly retained by Grantor, but only grants the non - exclusive easement rights specifically provided in this Permanent Retaining Wall Easement Agreement; if the Permanent Retaining Wall 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 Retaining Wall Easement Property, but Grantor shall have the right 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 Retaining Wall Easement Agreement. 9. Grantee shall not permit to be placed against the Permanent Retaining Wall 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 Retaining Wall Easement Property. GRANTEE AGREES, TO THE EXTENT PERMITTED BY LAW, 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 RETAINING WALL EASEMENT PROPERTY. THE INDEMNITY AND OTHER RIGHTS AFFORDED BY THIS SECTION SHALL SURVIVE THE TERMINATION AND EXPIRATION OF THIS PERMANENT RETAINING WALL EASEMENT AGREEMENT. 10. The rights granted under this Permanent Retaining Wall Easement Agreement are granted until the Facilities or use of the Permanent Retaining Wall Easement Property shall be Abandoned, and in that event such rights shall cease and all rights granted under this Permanent Retaining Wall 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 5 33215.4 defined as the non -use of the Facilities or the Permanent Retaining Wall Easement Property for the purpose herein granted, for a continuous period of five years and the Grantee agrees that it has no further intent to use the Permanent Retaining Wall Easement Property for any of the permitted purposes. 11. No termination or expiration of the Permanent Retaining Wall Easement Agreement shall release Grantee from any liability or obligation under this Permanent Retaining Wall 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 Retaining Wall 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 Retaining Wall 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 such invalidity, illegality, or unenforeeability shall not affect any other provision hereof, and this Permanent Retaining Wall Easement Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein, and the remaining provisions of this Permanent Retaining Wall Easement Agreement will remain in effect. 14. This Permanent Retaining Wall Easement Agreement is not valid or binding on any party unless executed by all of the parties listed below. This Permanent Retaining Wall 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 Retaining Wall Easement Agreement shall extend to and be binding upon Grantee and Grantor and their permitted successors and assigns, if any. 15. Grantee agrees and represents that: (i) this Permanent Retaining Wall Easement Agreement is binding on Grantee 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 Retaining Wall Easement Agreement, Grantee 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 RETAINING WALL 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 6 33215.4 AGREEMENT OF THE PARTIES THAT THERE ARE NO REPRESENTATIONS OR EXPRESS OR IMPLIED WARRANTIES EXCEPT AS EXPRESSLY PROVIDED HEREIN, IFANY. 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, limitations, reservations, and exceptions contained in this Permanent Retaining Wall Easement Agreement, until the Facilities or use of the Permanent Retaining Wall Easement Property shall be Abandoned as provided in this Permanent Retaining Wall Easement Agreement, and in that event said Permanent Retaining Wall Easement Agreement shall cease, all rights herein granted shall terminate, and all rights to use the Permanent Retaining Wall Easement Property shall automatically revert to Grantor or Grantor's heirs, successors, assigns and/or legal representatives. EXECUTED to be effective as of May _, 2013. GRANTOR: GRANTEE: BRIAN JEFFREY MASSEY CITY OF SOUTHLAKE, TEXAS By: Brian Jeffrey Massey The Honorable John Terrell, Mayor 1200 North Kimball Avenue 1400 Main Street Southlake, Texas 76092 Southlake, Texas 76092 Attest: Alisha Richardson, City Secretary REMAINDER OF PAGE INTENTIONALLY BLANK 7 33215.4 ACKNOWLEDGMENTS STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared BRIAN JEFFREY MASSEY, 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 day of May, 2013. Notary Public in and for The State of Texas My Commission Expires: Typed or Printed Name of Notary STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared the Honorable JOHN TERRELL, Mayor of the City of Southlake, 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, and in the capacity therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of May, 2013. Notary Public in and for The State of Texas My Commission Expires: Typed or Printed Name of Notary 8 33215.4 Exhibit "A" Survey of Permanent Retaining Wall Easement Property 9 33215.4 RICHARD HOLUDAY AND WIFE, MARY ANN HOLUDAY w z VOL. 14325, PG. 524, D.R.T.C.T. I kI ' NORTHWEST CORNER rn MASSEY TRACT "PK" NAIL FOUND 1/2" IRON ROD SEi ° e TUMBLEWEED ° TR AIL c .y I of - a ,� N 89°45'37"W 49 42' o N • 49.42' N 89 ° 10'29 "E 10.00 QO I N 00°49'31"W 25.00' ;> POINT I OF BEGINNING I S 89 °10'29 "W 7.00'1 PROPO NEW JEFF MASSEY RIGHT- F -WAY VOL. 16881 M PG. 198 1 LIME D.R.T.C.T. I LOT 3, THE HILL ADDITION VOL. 388 -159, PG. 96 ' o P.R.T.C.T. PERMANENT WALL 1,?; m 0.025 ACRE / 1075 SQ.FT. M o 1 -o CRIPPLE CREEK ,�\ o h M s 0 LANE , 9. NEW „ 1 RIGHT -OF -WAY UNE S 89 °10'29 "W 3.00' I 1/2" IRS I I _ - 1/2" IRS SURVEY LINE CENTERLINE ROAD ` - - - "PK" NAIL FOUND _ __ _ _ - _ - - �- SOUTHEAST CORNER "PK" NAIL FOUND IN I OF MASSEY TRACT CENTERLINE OF ROAD J¢- '0ryh I °' �o z F 5 l y. �0 I I J 1 °a In ;`1P. lr P PROPERTY CORNER NOTE SCALE 1 "= 100' ALL PROPERTY CORNERS SET ARE 1/2" IRON RODS (1/2" IRS) WITH CAP MARKED "BRFTTAIN & CRAWFORD" (ti Sj CITY OF SOUTHLAKE S 1400 MAIN STREET, SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET /''� EXHIBIT "B" �' � BRIT T l �RARFORD 7 ��� 1 � ' L TOPOGRAPHIC MAPPING PERMANENT WALL EASEMENT . /7y X 0.025 ACRE OF LAND (,+ , JAMES L BRITTAIN , . (8171 Yx &-0x11 - METRO (817) 4t9-0111 LOCATED IN THE � . v�" 1674 .1:q.1 W R.O. R WA1' ID (1 3)D eoun FREEWAY •, ! '. 0 , , 41Q F.{ t FOR WPM =,B ,g, ;O FRANCIS THROOP SURVEY .- NAL aemt^«RRbin-..wAaNSain ABSTRACT No. 1511 SOUTHLAKE, TARRANT COUNTY, TEXAS N VISED 2, 2011 1.11 \KIARALL _FS - 15\ REVISED MAY 10, 2013 4111111111.11.10 Exhibit "B" Legal Description of Permanent Retaining Wall Easement Property 10 33215.4 EXHIBIT "A" LEGAL DESCRIPTION PERMANENT WALL EASEMENT NORTH KIMBALL AVENUE PARCEL 15 BEING 0.028 acre of land located in the FRANCIS THROOP SURVEY, ABSTRACT No. 1511, Southlake. Tarrant County, Texas, and being a portion of a tract of and conveyed to Jeff Massey, by the deed recorded in Volume 16881, Page 198, of the Deed Records of Tarrant County, Texas. Said 0.028 acre of and being more particularly described by metes and bounds as follows: BEGINNING at a point in the new West right -of -way line of North Kimball Avenue, and lying N 89° 45' 37" W 49.42 feet, and S 00 "49'31 "E 92.80 feet, from a "PK" nail found marking the Northeast corner of said Massey Tract. Said Point of Beginning also lying in the new West right -of -way line of North Kimball Avenue; THENCE S 00° 49' 31" E 300.00 feet, along the new West right -of -way line of said North Kimball Avenue, to a point; THENCE S 89° 10' 29" W 3.00 feet, to a point; THENCE N 00° 49' 31" W 275.00 feet. along a line 3 feet West of and parallel to the new West right -of -way line of said North Kimball Avenue, to a point: THENCE S 89° 10' 29" W 7.00 feet, to a point; THENCE N 00° 49' 31" W 25.00 feet, along a line 10 feet West of and parallel to the new West right -of -way line of said North Kimball Avenue, to a point: THENCE N 89° 10' 29" E 10.00 feet, to the POINT OF BEGINNING, containing 0.028 acre (1,075 square feet) of land. EXHIBIT g:201 C'4egalslklmbell- IegalslES1N15B 1 13 Exhibit "C" Exceptions To Title From Title Commitment 1I 33215.4 SCHEDULE B EXCEPTIONS FROM COVERAGE GF Number 09 -04451 In addition to the Exclusions and Conditions and Stipulations, your Policy will not cover loss, costs, attomey's fees, and expenses resulting from: 1. The following restrictive covenants of record itemized below (We must either insert specific recording data or delete this exception): In policy to be issued, Item No, 1 will be deleted. 2. Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements. ) 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. 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.): (09- 04451.PFD/09- 04451!30) FORM T -7: Commitment for Title Insurance (Schedule RA'fTIKiN TITLE COMPANY, FORT WORTH, TEXAS B) EXHIBIT SCHEDULE B (Continued) GF Number: 09 -04451 a. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the title that would be disclosed by an accurate and complete land survey of the land. (Note: Upon receipt of a survey acceptable to Company, this exception will be deleted. Company reserves the right to add additional exceptions per its examination of said survey.) b. Easement for right-of-way recorded in Volume 2063, Page 351, Deed Records of Tarrant County, Texas. c. Easement for right-of-way recorded in Volume 2063, Page 353, Deed Records of Tarrant County, Texas. d. Easement for right -of -way granted to TEXAS POWER & LIGHT COMPANY by instrument recorded in Volume 8220, Page 437, Deed Records of Tarrant County, Texas. • - - -- • • _ e - - : _ • • •. - • • • • � • i 1 • • � _ ' ' : _ - - • - • - _ _ _ . 1 • •• .- . w-. '- _ . •1 as a •- v • . • . . _ —Memerondum. g. Terms, conditions, and stipulations contained in lease agreement between Jeff Massey and wife, Jodie Lynn Massey, as Lessor, and New Cingular Wireless PCS, LLC, as Lessee, a Memorandum of which is filed for record under Clerk's File No. D212219369, Deed Records of Tarrant County, Texas. • ••- • • = . - (09-04451 . P F D /09- 04451 /30) FORM T -7: Commitment for Title Insurance (Schedule RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS B) EXHIBIT mg- SETTLEMENT AGREEMENT EXHIBIT R AFFIDAVIT OF DISCLAIMER AND WAIVER By these presents, Masco Service Corporation does hereby disclaim and waive any right, title, or interest in: (i) the property described on Exhibits A, B, and C, whether by lease or otherwise, and any right to recover any payment, compensation, fees, or expenses from the City of Southlake Texas, in connection with the transfer to the City of Southlake, Texas title and / or easements over such property in connection with the settlement of a pending condemnation matter. MASCO SERVICES CORPORATION By: Brian Jeff Massey Its: President 1200 Kimball Avenue Southlake, Texas 76092 STATE OF TEXAS ) COUNTY OF TARRANT ) Before me, the undersigned authority, on this day personally appeared Brian Jeff Massey, who, having been first duly sworn, on oath stated that he is the President of Masco Services Corporation, that he is authorized to execute the foregoing Affidavit of Disclaimer and Waiver on behalf of Masco Services Corporation, and that he has executed such Affidavit with full authority to so act. SIGNED AND SEALED this day of April, 2013. (Seal and Expiration) Notary Public in and for the State of Texas EXHIBIT DISCLAIMER AND WAIVER — Page 1 33216.3 • • EXHIBIT "A" LEGAL DESCRIPTION PERMANENT RIGHT -OF -WAY NORTH KIMBALL AVENUE PARCEL 15 BEING 0.816 are of land located in the FRANCIS TNROOP SURVEY, ABSTRACT No. 1511, Southlake, Tarrant County, Texas, and being a portion cf a tract of land conveyed to Jeff Massey, by the deed recorded in Volume 16881, Page 198, of the Deed Records of Tarrant County, Texas. Said 0.816 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 Massey Tract, and lying at the intersection of the centerline of North Kimball Avenue, with the centerline of E. Highland Street; THENCE N 89' 39' 25" W 331.64 feet, along the South boundary line of said Massey Tract, and along the centerline of E. Highland Street: THENCE N 00° 35' 06" W 34.98 feet. along the West boundary line of said Massey Tract, to a W iron rod marked 'Britain & Crawford" set. in the new North right -of -way line of said E. Highland Street; THENCE S 89° 38' 59" E 269.97 feet. along the new North right-of-way line of said E. Highland Street, to a W iron rod marked "Britain & Crawford' set in the new West right -of -way line of said North Kimball Street; THENCE along the new West right -of -way line of said North Kimball Street, as follows' 1. N 45` 00' 00' E 19.71 feet, to a W iron rod marked 'Britain & Crawford" set; 2. N 00' 49' 31" W 478.08 feet, to a W iron rod marked 'Britain & Crawford" set in the North boundary line of said Massey Tract, lying in the South boundary line of a tract of land conveyed to Richard Holliday and wife, Mary Ann Holliday, by the deed recorded in Volume 14325, Pace 524, by the Deed Records of Tarrant County, Texas; THENCE S 89' 45' 37" E 49.42 feet, along the North boundary line of said Massey Tract, and the South boundary line of said Holliday Tract_ to a 'PK" nail found at the Northeast corner of said Massey Tract, lying in the centerline of said North Kimball Avenue; THENCE S 00° 35' 17" E 527.10 feet, along the East boundary tine of said Massey Tract, and the centerline of said North Kimball Avenue, to the POINT OF BEGINNING, containing 0 816 acre (35,543 square feet) ci land. EXHIBIT nOtrJe s:hiriban- 44ak;n'Ow1 • AREA TABLE ! RICHARD HOLLIDAY AND WIFE, zi 0.816 ACRE TOTAL i MARY ANN HOLLIDAY =- (35.543 5Q.FT.) VOL_ 14325, PC. 524, 0.R'.;.T. i ■ PRESC RIF S 89 °45'37 "E uI 1 R1Gl r-OF -WAY 49.42' , "'K" NAIL FOUND 0338 ACRE NE7 � - - - (14,70o so.n.) - - - - TUMBLEWEED 1/2" IRS s lr TRAIL Q 5� PERMANENT G_ �I I RIGHT -OF -WAY LINE •CZ ! G\S 01 -4v1 Q r Jr o 4 . LA te JEFF MASSEY h < o 4 S�� VOL 16881, PG. 198 L. 2 1 D.R.T.C.T. o LOT 3, THE HILL ADDITION ,- VOL. 388 -159, PG. 96 x _ P.R.TC.T. ,,,�� - i. > n eZ � 'e .. - .- CRIPPLE CREEK s 01 " eh LANE O' 0 o o 1 to Z 1 y 2 `yO PERMANENT 1 fcTr,HT -of -WAY tNE N 45 °00'00 "E .c ' ° N 00 °35'06 "W 19.71' f' 34 98' i S $9°38'59 "E 1/2' s 269.97' - rrz s- 25 POINT OF sURw r L NE _ N CEN ROAD N , BEGINNING "PK" NAIL FOUND _N_89°39 r' 31-64 ' =� � 1 IN C_AITERUNE "PK" NAIL FOUND IN 1 INTFJ?SECTION CENTERLINE Or- ROAD PRESCRIPTIVE .G, -.O°g I 1 RIGHT- OF -WAT UNE 5J , I . ` tee ., 1 z 1 SURVEYED ON THE GROUND ....‘1' .. vS9 l n 1 CCTOEIER 7. 2009 / .. I 1 s . - Iy i ` I. . + ►+C 5 L BRITIAN , .ttH[..5 L 9RRTAMe '•.."y +'o, PROPELZtt CORNER NOTE kfEFD PRA SUR LAND SURYEYOR .. . ALL PROPERTY =PIERS SET ARE 1/2" IRON RODS STATE OF TEXAS NO. 1674 (1 /2'9RS) WITH CAP MARKED "BRITTAJN & CRAWFORD" CITY OF SOUTHLAKE 1400 MAIN STREET, SOUTHL4KE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET EXHIBIT "B" - N BRrrrAI & CRA'WFORD PERMANENT RIGHT -OF -WAY "' " 0.516 ACRE OF LAND TOPCGRAPNC � ' w,c LOCATED IN THE I I x " P20Q11 i W,.1„ ",' : FRANCIS THROOP SURVEY W P . a Ba ■ sr. -you aam. MVP. FOR *PPM 11=t+ MI,C ABSTRACT Flo. 1511 SOUTHLAKE, TARRANT COUNTY. :MI M I. N_ROWIn \ TEXAS SCALE 1 "= 100' .sawaa EXHIBIT "A" LEGAL DESCRIPTION PERMANENT UTILITY, DRAINAGE AND WALL EASEMENT NORTH KIMBALL AVENUE PARCEL15 BEING 0.111 acre cf iand located in the FRANCIS THROOP SURVEY, ABSTRACT No. 1511, Southlake, Tarrant County, Texas, and being a portion of a tract of land conveyed to Jeff Massey, by the deed recorded in Volume 16881, Page 198. of the Deed Records of Tarrant County, Texas. Said 0.111 acre of land being more particularly described by metes and bounds as follows: BEGINNING at a W iron rod marked "Brittain & Crawford' set in the North boundary tine of said Massey Tract. and lying N 89° 45' 37" W 49.42 feet from a °PK° nail found marking the Northeast corner of said Massey Tract. Said Point of Beginning also Tying in the new West right -of -way line of North Kimball Avenue; THENCE S 00°49'31' E 478.08 feet, along the new West right -of -way True of said North Kimball Avenue, to a W iron rod :marked "Britain & Crawford', set THENCE 3 45° 00' 00 W 13.94 feet, to a point; THENCE N 00 49' 31' W 487.98 feet. to a point in the North boundary tine of said Massey Tract: THENCE S 89° 45' 37' E 10.00 feet, along the North boundary tine of said Massey Tract, to the POINT OF BEGINNING, containing 0.111 acre (4,830 square feet) of land. 1 b 2co:.4._ms4, -- t*r EXHIBIT 4 it RICHARD MQLUDAY AND WIFE. WARY ANN 1 OLLIDAY Li VOL 14325, P. 524, D.R ^.G.S. .a s-I POINT Or BEGINNIN UASSZY HIE ST E 1/2 tRSi! MD SET "PIC' NAIL Faun kr i _ _ ti TUMBLEWEED '` 1 S 89 °45'37 "E TRAIL o 10.00' N 84.43'37Vt __`" 4' I <a. 4 2' PERMANENT UTIUTr, DRAINAGE AND WALL EASEMENT •1 . D w 0.111 ACRE / 4,830 SQ.FT, LCWE JEFF MASSEY te ". o r VOL. 16881, PG. 198 a m I D.R.T.C.T. ' x I 3. THE HILL A TkCH _ GS VOL. 338 - 159. PG. '6 3: Lc! If d I P.R.T.^_.T. - e a t 0 CRIPPLE CREEK �,` C z LANE 0 o i - .c'' z 1 1 , 1 t tiElY 1 RiG HI -0F -WAY 1,1NE 1 1 \ S °QO'CO 4V ; - - t \ 13_94' 1 ,, ,RS st .'E UN CENTER,,9'JE ROAD I _ _ _ _ _ _ _ 1 '•?x" NAL r 5011T TSi CORNER . �• =iC' NA!i 'FOUND IN F 1 Or ASSTY TRACT •' <" NA R ' 01' RI - -. - _ 1 y �`� o . � . ..,. I U j sa a • -4 i t. ccA 1 S . P PROPUiTY CORNER I' CE< SCALE 1 "_ 100' AL PROPERTY CC RS SET ARE S /2" IRON ROOS (1/2" IRS) KITH CAR MARKL'$RfTT At CRAWFORrD" ' ' CITY OF SOUTHLAKE j. t �� 1400 MAIN STREET, SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, Ski 114 TO EAST HIGHLAND STREET EXHIBIT "8" F_ r OM l , 3Etrrr> T &CROTORD ' PERMANENT UTILITY, DRAINAGE m 1A,o sun ,~c t AND WALL EASEMENT ,� c r�: >' Z t xx�uvur. uu •o, c 0.111 ACRE OF LARD = `� X ,K .:T: avv I1 • u1. r .,r, .:.-,.1e . LtiiES - 'S Tiaii W N. $74-16.1,1 LOCATED lit THE 1.,.. . s@ , n... ?OM .MIT.. Ktnr e; I fi71 o" aunt. sus T6114 FRANCIS NROOP SURVEY ` A+ ` {o pt °u" ABSTRACT t o, 1511 riccc+sr.:LCS_,st sotTINLAKE TARRANT COU 2TY, TEXAS JULY o 2010 Jiancit4 EXHIBIT "A" LEGAL DESCRIPTION PERMANENT WALL EASEMENT NORTH KIMBALL AVENUE PARCEL 15 BEING 0.028 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 Jeff Massey, by the deed recorded in Volume 16881, Page 198, of the Deed Records of Tarrant County, Texas. Said 0.028 acre of and being more particularly described by metes and bounds as follows: BEGINNING at a point in the new West right -of -way line of North Kimball Avenue, and lying N 89° 45' 37" W 49.42 feet, and S 00'49'31 "E 92.80 feet, from a "PK" nail found marking the Northeast comer of said Massey Tract. Said Point of Beginning also lying in the new West right -of -way line of North Kimball Avenue; THENCE S 00° 49' 31" E 300.00 feet, along the new West right -of -way line of said North Kimball Avenue, to a point; THENCE S 89° 10' 29" W 3.00 feet, to a point; THENCE N 00° 49' 31" W 275.00 feet, along a line 3 feet West of and parallel to the new West right -of -way line of said North Kimball Avenue. to a point; THENCE S 89° 10' 29" W 7.00 feet, to a point; THENCE N 00° 49' 31` W 25.00 feet, along a line 10 feet West of and parallel to the new West right -of -way line of said North Kimball Avenue, to a point; THENCE N 89° 10' 29' E 10.00 feet, to the POINT OF BEGINNING, containing 0.028 acre (1,075 square feet) of land. EXHIBIT 9:201 0Ueg a lslkim ba n.le g a ls'E SW 156 CO' RICHARD HOLUDAY AND WIFE, MARY ANN HOLUDAY W VOL. 14325, PG. 524, D.R.T.C.T. I I 1 I D NORTHWEST CORNER N MASSEY TRACT "PK" NAIL FOUND `J ,L" 1/2" IRON ROD SET - - oo — — _ _ _ TUMBLEWEED ." .W G i TRAIL \� I :'b N 89 °45'37 "W I N 89°10'29"E 10.00 ° 0, a9.a2' 1 N 00°49'31"W 25.00' io POINT I OF BEGINNING P S 89 °10'29 "W 7.001 JEFF MASSEY PROPO NEW 1 RIGHT F -WAY 1 VOL. 16881, PG. 198 LJ E D.R.T.C.T. I I LOT 3, THE HILL ADDfTION VOL. 388 -159, PG. 96 , b P.R.T.C.T. PERMANENT WALL o < I EASEMENT - 0 1 — — 10.025 ACRE / 1075 SQ.FT. '7)-8 w 1 Yp CRIPPLE CREEK ,` v0 a LANE 0 0 • ON 1 � M E"�� - ,� ° . re 1 Q., I z I Z NEW v 1 RIGHT —OF —WAY L "' S 89 °10'29 "W 3.00' I 1/2" IRS I 1 - - - - ._-- ------ -_.� —�. —_ 1/ IRS SURVEY LINE CENTERLINE ROAD - - - - - - , "PK" NAIL FOUND - - - SOUTHEAST CORNER "PK" NAIL FOUND IN 1 OF MASSEY TRACT CENTERLINE OF ROAD I 500 �ry� I I z 1 /c o. F 5 I y. PO 0 II o `�� i U � 5 Sa o �(.): LP G ll 0 PROPERTY CORNER NOTE SCALE 1 "= 100' ALL PROPERTY CORNERS SET ARE 1/2" IRON RODS (1/2" IRS) WITH CAP MARKED "BRRTAIN do CRAWFORD" } r CITY OF SOUTHLAKE 1400 MAIN STREET, SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET Il k • //''YY���� EXHIBIT "B" WFORD Al , , -', ' / t F M = M R VEYI �K8 . . E p� W I & � PERMANENT WALL EASEMENT I , * s Z TOPOGRAPHIC MAPPING �, y JAY ES L BRRTAIN V 0.025 ACRE OF' LAND X cel � Iex F 6 ucN l a (e+ � i azsai•za -ellx `� r ��i167 4�yo ? T LOCATED IN THE \ - _..__ ................., W s .ssa{ FORT ' KI a ,� 1 "�"" FRANCIS THROOP SURVEY " ° suR‘it J `"" °""1nObi """'`""`°" ABSTRACT No. 1511 SOUTHLAKE, TARRANT COUNTY, TEXAS NOVEMB ` 2, 2011 VuWIU �ES_I5\ REVISED MAY 10, 2013 SETTLEMENT AGREEMENT EXHIBIT T NON - EXCLUSIVE JOINT USE PRIVATE ACCESS EASEMENT This Non - Exclusive Joint Use Private Access Easement (the "Agreement ") is entered into by and between Brian Jeff Massey ( "Massey ") and Richard Holliday and Mary Ann Holliday (collectively "Holliday ") (Massey or Holliday, a "Party" and Massey and Holliday collectively the "Parties "). RECITALS: WHEREAS, Massey is the owner of that certain property in the City of Southlake, Tarrant County, Texas, which property is more particularly described on Exhibit A attached hereto and made a part hereof ( "Massey Property"); and WHEREAS, Holliday is the owner of that certain property in the City of Southlake, Tarrant County, Texas, more particularly described on Exhibit B attached hereto and made a part hereof ( "Holliday Property "); and WHEREAS, it is the intended purpose of Massey and Holliday to grant to each other a perpetual, non - exclusive, joint use private access easement over, through and across the Massey Easement Area and the Holliday Easement Area to allow free and uninterrupted pedestrian and vehicular ingress to, egress from, and access across and between the Massey Easement Area and the Holliday Easement Area, for the benefit of the Massey Property and the Holliday Property, on the terms, conditions, and restrictions contained in this Agreement; NOW, THEREFORE, in consideration of the recitals set forth above, the covenants, stipulations, promises, and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is admitted, and subject to the reservations exceptions, terms, conditions and restrictions set forth below, Massey and Holliday agree to the following: A. Grant of Perpetual, Non - Exclusive, Joint Use Private Access Easements And Related Terms 1. Subject to the reservations, exceptions, terms, conditions and restrictions set forth below, Massey hereby grants and conveys unto Holliday, and Holliday's heirs, successors and assigns, a perpetual, non - exclusive, joint use private access easement across the Massey Easement Area for the purposes of providing free and uninterrupted pedestrian and vehicular ingress to, egress from, and access across and between the Massey Easement Area and the Holliday Easement Area for the benefit of all or any portion of the Holliday Property. As used in this Agreement, the Massey Easement Area shall mean the portion of the Massey Property described on Exhibit C attached hereto and incorporated herein and as shown as a NON - EXCLUSIVE JOINT USE PRIVATE ACCESS EASEMENT Page 1 EXHIBIT 33637.7 "Common Access Easement" on the attached Exhibit E, which area extends from the northern boundary of the Massey Property fifteen (15) feet to the south, and approximately one hundred thirty -five (135) feet in length, and also extends from the western right -of -way line of Kimball Avenue to the eastern boundary of the Texas Power & Light utility easement. 2. Subject to the reservations, exceptions, terms, conditions and restrictions set forth below, Holliday hereby grants and conveys unto Massey, and Massey's heirs, successors and assigns, a perpetual, non - exclusive, joint -use private access easement across the Holliday Easement Area for the purposes of providing free and uninterrupted pedestrian and vehicular ingress to, egress from, and access across and between the Holliday Easement Area and the Massey Easement Area for the benefit of all or any portion of the Massey Property. As used in this Agreement, the Holliday Easement Area shall mean the portion of the Holiday Property as described on Exhibit D attached hereto and incorporated herein and as shown as a "Common Access Easement" on the attached Exhibit E, which area extends from the southern boundary of the Holiday Property fifteen (15) feet to the north, and approximately one hundred thirty-five (135) feet in length, and also extends from the western right -of -way line of Kimball Avenue to the eastern boundary of the Texas Power & Light utility easement. 3. Massey has entered or will enter into a Settlement Agreement In Lieu Of Condemnation with the City of Southlake, Texas by which the City of Southlake has agreed to have constructed the driveway and drive improvements (the "New Driveway and New Drive ") shown on the attached Exhibit E, pursuant to the specifications attached as Exhibit F. Holliday does hereby grant to the City of Southlake, Texas a temporary construction easement over, through and across the portion of the Holliday Property shown on Exhibit E as the Temporary Construction Area and described on Exhibit G attached hereto and incorporated herein, for the purpose of constructing the New Driveway and New Drive; this temporary construction easement will terminate and be of no further force or legal effect on the earlier of when the construction of the New Driveway and New Drive is completed or June 1, 2014, whichever occurs first, provided that the City of Southlake may elect to extend the temporary construction easement as necessary to complete the New Driveway and New Drive for one additional twelve (12) month period by giving Holliday written notice of its election to extend no later than March 1, 2014. If the City of Southlake exercises its right to extend as described herein, then the temporary construction easement will terminate and be of no further force or legal effect on the earlier of the date the construction of the New Driveway and New Drive is completed or June 1, 2015, whichever occurs first. NON - EXCLUSIVE JOINT USE PRIVATE ACCESS EASEMENT Page 2 33637.7 4. The easements described in this Agreement are appurtenant to and run with the Massey Property and the Holliday Property (collectively the "Properties ") and portions thereof, whether or not such easements are referenced or described in any conveyance of the Properties, or any portion thereof. The easements described in this Agreement are for the benefit of the Parties and the heirs, successors, and assigns of the Parties who at any time own all or any portion of the Properties or any interest therein (as applicable, "Holders "), and the easements granted hereunder and all provisions of this Agreement, including all benefits and burdens, shall run with the Properties, shall be perpetual, and are binding upon the successor owners of the Properties or any portion thereof. 5. The New Driveway and New Drive to be located on the Massey Easement Area and the Holliday Easement Area must be maintained at a level of appearance and utility consistent with the industry standards then prevailing for similarly used properties in the market in which the Properties are located. Each Holder will be solely responsible for the costs of maintaining the portion of the New Driveway and New Drive located on that Holder's Property. If a Holder does not perform the required maintenance, then any other Holder, after giving the nonperforming Holder thirty days' written notice, will have the right to perform the maintenance and receive reimbursement from the nonperforming Holder. Reimbursement will be payable on demand and include the costs of the maintenance, plus interest at the highest rate permitted by law (or if no maximum rate is prescribed by law, at the rate of 18 percent per year). 6. All Holders hereby consent to the dedication to the City of Southlake of the Massey Easement Area and the Holliday Easement Area as a fire lane for the Massey Property and/or the Holliday Property if such dedication is a required by the City of Southlake in connection with the platting or other development of the Massey Property and/or the Holliday Property or any portion thereof. All Holders agree to execute such other documents as may reasonably be required to evidence such dedication. 7. Each Party reserves for that Party and that Party's heirs, successors, and assigns the right to continue to use and enjoy the surface of the Massey Easement Area and the Holliday Easement Area, as applicable, for all purposes that do not unreasonably interfere with or interrupt the use or enjoyment of the Massey Easement Area and the Holliday Easement Area in accordance with the terms of this Agreement. NON - EXCLUSIVE JOINT USE PRIVATE ACCESS EASEMENT Page 3 33637.7 8. The easements described in this Agreement are nonexclusive, and each Party reserves for himself and his heirs, successors, and assigns the right to use all or part of the Massey Easement Area and the Holliday Easement Area, as applicable, in conjunction with any other Holder and the right to convey to others the right to use all or part of the part of the Massey Easement Area and the Holliday Easement Area, as applicable, in conjunction with the Holders, as long as such further conveyance is subject to the terms of this Agreement. 9. The grants of easements by the Parties in this Agreement are made and accepted by each party "AS IS, WHERE IS" and with all faults, without warranty of title, either expressed or implied, and subject to the following additional exceptions, reservations, restrictions, conditions and provisions: a) All validly existing prescriptive easements, visible and apparent rights of way, and visible and apparent prescriptive rights; b) All presently recorded easements, restrictions, reservations, covenants, conditions, oil and gas leases, mineral interests, and water interests; c) validly existing utility easements created by recorded dedication deed or plat; d) 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 Massey Easement Area, the Holliday Easement Area, or any part of either of the foregoing; e) validly existing rights of adjoining owners in any walls and fences situated on a common boundary; f) any discrepancies, conflicts, or shortages in area or boundary lines; g) any encroachments or overlapping of improvements; and h) all visible encumbrances on, in, or affecting the Massey Easement Area, the Holliday Easement Area, or any part of either of the foregoing. 10. It is expressly understood and agreed that this Agreement does not constitute a conveyance in fee by any Party of any part of the Massey Property or the Holliday 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 Massey Easement Area and/or the Holliday Easement Area, which rights are expressly retained by the Party owning such NON- EXCLUSIVE JOINT USE PRIVATE ACCESS EASEMENT Page 4 33637.7 property, but only grants the non - exclusive easement rights specifically provided in this Agreement; if the Massey Easement Area and/or the Holliday Easement Area is subject to existing production or an existing lease, this reservation includes the production, the lease, and all benefits from it, provided, however, that no Holder 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 Massey Easement Area or the Holliday Easement Area, but such Holder shall have the right 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 a Holder's rights under this Agreement. B. General Terms 1. Upon completion of the construction of the New Driveway and New Drive, neither party shall permit ingress and egress across the Massey Easement Area or the Holliday Easement Area to be obstructed absent the written agreement of the owner(s) of the benefitted estate, except to the extent necessary for reasons of safety or unavoidable emergency repairs. 2. Neither this Agreement nor any provision hereof may be waived, modified, amended or terminated except by an instrument in writing, agreed to and signed by all the then- current owners of the benefitted and burdened properties. 3. This Agreement may be enforced by restraining orders and injunctions (temporary or permanent) prohibiting interference and commanding compliance. Restraining orders and injunctions will be obtainable on proof of the existence of interference or threatened interference, without the necessity of proof of inadequacy of legal remedies or irreparable harm, and will be obtainable only by the Holders or those benefited by this Agreement; provided, however, that the act of obtaining an injunction or restraining order will not be deemed to be an election of remedies or a waiver of any other rights or remedies available at law or in equity. 4. In the event of any action to enforce the provisions of this Agreement, the prevailing party shall be entitled to receive reimbursement from the other party for reasonable costs and attorneys' fees as determined by a court. 5. This Agreement shall be construed in accordance with the laws of the State of Texas. NON - EXCLUSIVE JOINT USE PRIVATE ACCESS EASEMENT Page 5 33637.7 6. This Agreement shall be recorded in the real property records of Tarrant County, Texas and following recording, true and correct copies of same shall be provided to the Parties and /or signatories hereto. 7. This Agreement is to be performed entirely in Tarrant County, Texas, and the exclusive venue to resolve any litigation to enforce any right or privilege granted herein, or to resolve any dispute regarding the terms of this Agreement shall lie in Tarrant County, Texas. 8. This Agreement may be executed in any number of counterparts with the same effect as if all signatory Parties had signed the same document. All counterparts will be construed together and will constitute one and the same instrument. 9. It is not a waiver of or consent to default if the nondefaulting Party fails to declare immediately a default or delays in taking any action. Pursuit of any remedies set forth in this Agreement does not preclude pursuit of other remedies in this agreement or provided by law. 10. Each signatory Party 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. 11. This Agreement and any exhibits are the entire Agreement of the Parties concerning the Properties and the reciprocal easements granted by the Parties. There are no representations, agreements, warranties, or promises, and neither Party is relying on any statements or representations of any agent of the other Party, that are not in this Agreement and any exhibits. All exhibits referenced in this Agreement are attached hereto and are incorporated herein. 12. If any provision in this Agreement is for any reason unenforceable, to the extent the unenforceability does not destroy the basis of the bargain among the Parties, the unenforceability will not affect any other provision hereof, and this Agreement will be construed as if the unenforceable provision had never been a part of the agreement. Whenever context requires, the singular will include the plural and neuter include the masculine or feminine gender, and vice versa. Headings in this agreement are for reference only and are not intended to restrict or define the text of any section. This Agreement will not be construed more or less favorably between the Parties by reason of authorship or origin of language. EXECUTED to be effective as of June 1, 2013. NON - EXCLUSIVE JOINT USE PRIVATE ACCESS EASEMENT Page 6 33637.7 Brian Jeff Massey ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared Brian Jeff Massey, 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 day of May, 2013. Notary Public in and for the State of Texas NON - EXCLUSIVE JOINT USE PRIVATE ACCESS EASEMENT Page 7 33637.7 Richard Holliday ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared Richard Holliday, 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 day of May, 2013. Notary Public in and for the State of Texas NON - EXCLUSIVE JOINT USE PRIVATE ACCESS EASEMENT Page 8 33637.7 Mary Ann Holliday ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared Mary Ann Holliday, 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 day of May, 2013. Notary Public in and for the State of Texas NON - EXCLUSIVE JOINT USE PRIVATE ACCESS EASEMENT Page 9 33637.7 Consent and Subordination by Lienholder Lienholder, as the holders of liens on the Massey Property, consents to the above grant of an easement affecting the Massey Property, including the terms and conditions of the grants in the above Agreement, and Lienholder subordinate its liens to the rights and interests of Holders, so that a foreclosure of the liens will not extinguish the rights and interests of Holders. STATE BANK AND TRUST COMPANY By: Its: ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personally appeared , 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 /she executed the same for the purposes and consideration therein expressed, and in the capacity therein expressed, with full authority to so act. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of May, 2013. Notary Public in and for the State of Texas NON - EXCLUSIVE JOINT USE PRIVATE ACCESS EASEMENT Page 10 33637.7 EXHIBIT "A" ;l E BEING a 4.009 acre tract of land in the Francis Throop Survey, Abstract No. 1511, Tarrant �; County, Texas as described in deed to Brian 1etTery Massey and Ryan Todd Massey as -i recorded in Volume 16429, Page 396 of the Deed Records ofTanant County, Texas and te being more particularly described as follows: 00 Gi. BEGINNING at a P.K. Nail set in the asphalt at the southeast corner of said Throop survey, said corner being the centerline of the intersection of East Highland Street (Co. Road 3034) 1 3 and Kimball Avenue (Co. Road 3119): r ^,. THENCE N 89' 05'()0" Net along centerline of said East Highland Street a distance of 331.60 () feet to a P.K. Nail set in the asphalt, " `: } S THENCE N 00' IT 00 E passing at 2000 feet a 1/2" iron rod found in the north right-of-way ..it line of said East Highland and at 41.86 feet a 112" iron rod found disturbed and being by plat:: the southeast corner of The Hill Addition, an addition to the City of Southlake as recorded in = Volume 388-159, Page 96 of the Plat Records of Tarrant County, Texas, and continuing along the east line of said The Hill Addition a total of 526.60 feet to a 1/2" iron rod set with a "TQ Burks #15509" cap said point being by deed call the southwest corner of a tract of land described in deed to Richard Holliday and wife, Mary Ann Holliday as recorded in Volume 14325, Page , 524 D.R.T.0 T.; THENCE S 89' 10' 10" E along south line of said Holliday tract passing at 305.45 feet a 112" iron rod set with a "TQ Burks #5509" cap in the west right -of -way line of said Kimball Avenue, -.. and continuing in all 331.45 feet to a P.K. Nail set in the asphalt in the centerline of said Kimball Avenue- "` THENCE S 00' 11'02 along said centerline of Kimball Avenue a distance of 527.10 feet to the Point of Beginning and containing in all 174551 square feet of 4.009 acres of land in which ::`4 0.455 acres of hued falls in said street right -of -ways, leaving a net of 3.555 acres. , .. s • • EXHIBIT a A 013629.000O1 :78623601 8 ' 4- . 3 7:ntrrtty: TARRANT Doc: 000239648 Date: 07/03/2003 Vol: 0016881 Paae: 00198 Paae 3 of 5 EXHIBIT "A" BEING a tract of land out of the Francis Throop Survey, \ • Abstract No. 1511, Tarrant County, Texas, and more _particularly a portion of a 20 acre tract deeded to Evans and recorded in Volume 1627, Page 131, Deed Records, Tarrant County, Texas, and being more parti- ;'fiiilarly described by metes and bounds as follows: :.` BE6INNIF-•4t a point in County Road No. 3119, said 'poiut°`tieiri North 527.1 feet from the Southeast corner ▪ of laid Thpo p Survey, same being the Southeast corner q.£ s9td:•"6vans :.20 acre tract; THENCi e h.'89 degrees 21 minutes West at 26.0 feet an iroh ro West line of said road, in all, 331.9 feet td a=r'1..ron rod for corner; THENCE NortE 00 rlegr @es 12 minutes East 131.4 feet to an iron rod'; foY -, Corn-e.; . THENCE Sou89,d'egrees 21 minutes East at 305.4 feet an iron rod in',thi West line of said County Road No. 3119, in all, 331.4' feer- a point in the centerline of said road; THENCE South aldiig'Ghe nenterline of said road, 131.4 feet to the POINT- -6F,BLGINNIN,G1 ABOVE - REFERENCED PROPERTY..!.NOWN AS 1360 NORTH KIMBALL AVENUE, SOUTHLAKE, TEXAS, 7..609 • EXHIBIT • 1:3 EXHIBIT "A" LEGAL DESCRIPTION PERMANENT COMMON ACCESS EASEMENT NORTH KIMBALL AVENUE PARCEL 15 BEING 0.047 acre of land located in the FRANCIS THROOP SURVEY, ABSTRACT No. 1511, Southlake, Tarrant County, Texas, and being a portion of a tract of and conveyed to Jeff Massey, by the deed recorded in Volume 16881, Page 198, of the Deed Records of Tarrant County, Texas. Said 0.047 acre of and being more particularly described by metes and bounds as follows: BEGINNING at a point in the North boundary line of said Massey Tract, and lying N 89 45' 37" W 49.42 feet, from a "PK" nail found marking the Northeast corner of said Massey Tract. Said POINT OF BEGINNING also lying in the new West right -of -way line of North Kimball Avenue: THENCE S 00° 49' 31" E 15.00 feet, along the new West right -of -way line of said North Kimball Avenue to a point: THENCE N 89" 45' 37" W 135.59 feet, along a line 15 feet South of and parallel to the North boundary line of said Massey Tract to a point; THENCE N 00" 14' 23" E 15.00 feet, to a point in the North boundary line of said Massey Tract; THENCE S 89° 45' 37" E 135.31 feet, along the North boundary line of said Massey Tract, to the POINT OF BEGINNING containing 0.047 acre (2,032 square feet) of land. EXHIBIT G:' 2333tLEGALSXiitv1 BALL- LEEGALS'ACC-15.Doc RICHARD HOWDAY AND WIFE, MARY ANN HOLLIDAY I I VOL. 14325, PG. 524, D.R.T.C.T. I POINT OF BEGINNING Z 1/2" IRON ROD SET. WITH = MARKED "BRITTAIN & CRAWFORD" 1 1 rA — "PK" NAIL FOUND I S 89 °45'37 "E i - 35.31' ;," 59°45'37"W OF TIE MASSEY TRACT TRACT IIIIII S 00* , 9'31"E N 00°14'23"E N 89°45'37"W 135.59' 1 15.00' 1 [ PERMANENT COMMON 1 I ACCESS EASEMENT 0.047 ACRE /2,032 SQ.FT. 1 I i I 0 F�G`� ' by h I Q 1 , c,..,, JEFF MASSEY Y 1 VOL. 16881, PG. 198 D.R.T.C.T. ° 1 I ix F1 °z w $ Cr 1 �I g ce ‘'' a g 10 i 1 SCALE 1 "= 50' �� CITY OF SOUTHLAKE 1400 MAIN STREET, SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET EXHIBIT "8" - • , BRJTFM+r &CRAWFORD PERMANENT COMMON i (,o t` ` ,,' '" ND NG ACCESS EASEMENT 4°' -Vz, Z 0 .047 ACRE OF LAND f JAMES L. BRITTAIN sza -oe - rmo c s1r� ne • `^" "° ° "x' 954 sza -° LOCATED IN THE � “ :; ” 1674 '6 1. o Q. J ' P.O. BOX 113/4. 31304 SOUTH MOW FORT ROM TEXAS /gild FRANCIS THROOP SURVEY ' yO s v J OWL: eIreotlelliogn—aroWenLaern ABSTRACT No. 1511 v _ 15\ SOUTHLAKE, TARRANT COUNTY, TEXAS MAY 28, 2013 EXHIBIT "A" LEGAL DESCRIPTION PERMANENT COMMON ACCESS EASEMENT NORTH KIMBALL AVENUE, STATE HIGHWAY 114 TO DOVE ROAD PARCEL 16 BEING 0.047 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 Richard Holliday and wife, Mary Ann Holliday by the deed recorded in Volume 14325, Page 524, of the Deed Records of Tarrant County, Texas. Said 0.047 acre of land being more particularly described by metes and bounds as follows: BEGINNING at a 14" iron rod marked "Brittain & Crawford ", set in the South boundary line of said Holliday Tract, lying N 89° 45' 37" W 49.42 feet, from a "PK" nail found marking the Southeast corner of said Holliday Tract, and said POINT OF BEGINNING also lying in the new West right -of -way fine of North Kimball Avenue; THENCE N 89° 45' 37" W 135.31 feet, along the South boundary line of aforesaid Holliday Tract, to a point; THENCE N 00° 14' 23" E 15.00 feet. to a point: THENCE S 89° 45' 37" E 135.03 feet, along a line 15 feet north of and parallel to the South boundary line of said Holliday Tract to a point in the new West right -of -way line of said North Kimball Avenue; THENCE S 00° 49' 31" E 15.00 feet, along the new West right -of -way line of said North Kimball Avenue, to the POINT OF BEGINNING containing 0.047 acre (2,028 square feet) of land. EXHIBIT a D $ VV G 120101EGALSSKH- KIMBALLACC-16 Doc Q c,J� � f �' 1 N. W ■ GERALD C. GRAHAM AND WIFE, z M ■ BARBARA GRAHAM -' Z VOL10817, PG.2378 (,V D.R.T.C.T. i 1 4 I J m 5' ' Y RICHARD HOLUDAY AND WIFE, I PRo ED No, 1 MARY ANN HOLUDAY e-RIGHT—OF —WAY = 1 VOL.14325, PG.524 I UNE 1 — D.R.T.C.T. Z PERMANENT COMMON I ACCESS EASEMENT 1 0.047 ACRE / 2,028 SQ.FT N 00 °14'23 "E S 89 0 45'37 "E 135,03' S 00 49'31 "E -- 15.00' 1 .00' N 89 °45'37 "W 135.31' t N S9'45 • 37 " W :'PK" NAIL FOUND - 49.42' SOUTHEAST CORNER OF HOWOAY TRACT $ POINT OF BEGINNING - - ,�0 3/2" IRON ROD SET, WITH CAP A. MARKED "BRITIAIN & CRAWFORD" C) 4 1.. ' f g JEFF MASSEY 1 ti VOL16881, PG.198 1 D.R.T.C.T. w i 1 0 Lt) 1 ' I • SCALE 1 "= 50' f CITY OF SOUTHLAKE �% 1400 MAIN STREET, SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO DOVE ROAD EXHIBIT "B" , .-, BRrrrrnv &CRATrFORD PERMANENT COMMON GRAPHIC ° LAPPING ACCESS EASEMENT r , .. 'f V 0t71 aro-or 11 - 1[ a a171 •La -, it 0.047 ACRE OF LAND 4ANES L BRRTMN,!i FAX 110. 0171 026 -9347 1 • F.O. 00X 11084 • 3000 0011811 MEW LOCATED IN THE c 1 oe 'OPT'°"TM' •8100 T " FRANCIS THROOP SURVEY ' 'yO USi 874 -... .m ABSTRACT No. 1511 \KU \ .Acc_Is\ SOUTHLAKE, TARRANT COUNTY, TEXAS MAY 28, 2013 31:34. '. q 2pi }3}13 13 EaD ,.....4,2-,!-.°5- 1 t3 st (a o1w� 3) Lwt 3e a0: Y: . ..Y \�IIS / .001 \co,G \ MDIIU31 3-09- 26 -mwwY rw+� twwlr wtwet.\oo1,D3eq ( a : ,.. ".. iii-*: 4.'1, } * ._.ter '7 1 � I �' a=s" i s 6 f :. ::.: #F .,r, ' i "' `�' } F p p n':n w � . a " ra.' a - I 10 Il Lt., ' d. sv 3 � 4 T �L C � � 1 1` ;, ,-. 0 so,„..,i ,,, FL, -4 4 , , .,,,, ,,,,..., R, ,,,- ' 3, % 0 v: *--- 4 0 I 40 { 1 g l 4 __... F 3 4 IF r pp. . 1_,:.(ii.:,,,,,,„:„:24 , ,i4lig2i: ,-:;..z: ; :;,,i! 1 , ,,,,%4",t„ ')','''''' '''',, 0 I f d '. ,,,,,f1;14.--;,-. ffi$ s .: ' ijtl 1 k �s»'k ° ,g � i Y s , t m,- °$ k i°q ...' 4 F J} *i' .,,, j g Y — d SJ t ; 1 e � � a a � F _ q � j � s , -' . ��. N EXHIBIT !! ` 1 t x i �� I t S i 3AlE "r m13 ° "" M A SSEY/H OLLIDAY '� : T n ° """ k S ` .-- P ROPERLY CITY OF SOUTHLAKE , ; Mo-�.t ° " NORTH KIMBALL AVENUE z;; °� R.44., °Y °°" »: 331:,, MAY 16 2013 Y 3•R M M EXHIBIT "F" DRIVEWAY AND DRIVE SPECIFICATIONS 1. The New Driveway will be constructed to at least the following specifications: a. 2 inches of compacted minus 2 gravel base b. 6 inches of concrete, with concrete 3500 psi @ 28 days c. # 4 rebar, 16 inches on center each way d. Expansion joints at least every 20 feet, with smooth dowel bars installed in each expansion joints 2. The New Drive will be constructed to at least the following specifications: a. 24 feet in width, measured from bottom of curb to bottom of curb b. Standard curbs c. 2 inches of compacted minus 2 gravel base d. 6 inches of concrete, with concrete 3500 psi @ 28 days e. # 4 rebar, 16 inches on center each way f. Expansion joints at least every 20 feet, with smooth dowel bars installed in each expansion joints EXHIBIT 32476.3 EXHIBIT "A" LEGAL DESCRIPTION TEMPORARY CONSTRUCTION EASEMENT NORTH KIMBALL AVENUE, STATE HIGHWAY 114 TO DOVE ROAD PARCEL 16 BEING 0.087 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 Richard Holliday and wife, Mary Ann Holliday by the deed recorded in Volume 14325, Page 524, of the Deed Records of Tarrant County, Texas. Said 0.087 acre of and being more particularly described by metes and bounds as follows: BEGINNING at a point in the North boundary line of said Holliday Tract, lying N 89° 45' 37" W 59.92 feet, from a "PK" nail found marking the Northeast corner of said Holliday Tract; THENCE S 00° 49' 31" E 115.88 feet, to a point; THENCE N 89° 45' 37" W 125.03 feet, to a point; THENCE N 75° 42' 58" E 107.86 feet, to a point; THENCE N 00° 39' 37" W 38.79 feet, to a point; THENCE N 89.° 10' 29" E 8.17 feet, to a point; THENCE N 00" 40' 22" W 25.17 feet, to a point; THENCE WEST 18.28 feet, to a point; THENCE N 00 25' 04" W 24.78 feet. to a point in the North boundary line of said Holliday Tract; THENCE S 89° 45' 37" E 29.88 feet, along the North boundary line of said Holliday Tract to the POINT OF BEGINNING containing 0.087 acre (3,781 square feet) of land. EXHIBIT IZO1G',LEGAL3',KH- KIMBALL CS. fLA.Z:v CALL TABLE I 1 L -1 N 00°39'37"W 38.79' I L -2 N 89°10'29 "E 8.17' L -3 N 00'40`22 "W 25.17' -4 w r 18.28' L -5 N 00°25'04 "W 24.78'°L -8 S 89.45'37`E 29.88' GERALD C. GRAHAM AND WIFE. I BARBARA GRAHAM VOL.10817, PG.2378 1 c3 D.R.T.C.T. w c,' 1 N. z ■ y J POINT OF BEGINNING c 1 4 03- "PO' NAIL FOUND NORTVEAST CORNER G �5 OF HOLLIDAY TRACT 4 N 89 °45'37 "W a/ — — — 59.92 W tn n I Z I TEMPORARY CONSTRUCTION +. W EASEMENT, 0.087 ACRE / 3,781 SQ.FT • L - .. 1 F __ — RICHARD HOLLIDAY AND WIFE, L - rni� 1 MARY ANN HOLLIDAY :::„ V0L 14325, PG.524 1 c m D.R.T.C.T. N M j0T ,g6 . I i Y FA 15 ° 4 2 t5$ ,,t PROPOSED S N I N N 89 °45'37 "W 125.03' 0 — - - -- t -- -- - Z .. i PROPOSED COMMON ACCESS EASEMENT $ ' Cr > 6 b S i JEFF MASSEY 1 VOL.16881, PG.198 I I D.R.T.C.T. I i v ,I SCALE 1"= 50' 1st +CITY OF SOUTHLAKE 1400 MAIN STREET, SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO DOVE ROAD EXHIBIT "B" BRrrrAIN &CxswwORD TEMPORARY CONSTRUCTION LAND SURVEYING & 1 ,..r T Tf .� EASEMENT ( ;M TOPOGRAPHIC MAPPING t *--'6 :. ' 1317) 106-0!11 - ,RkO t$171 431T-511t 0.087 ACRE OF LAND ,j ;JAM TT ES L. BI MN NO. Fw 1137 • 3 9 • ] (100 0 11 OOOIM P.O. SOX 01,7 UTH FREEWAY LOCATED IN THE r" 670', �.,, , FCPT N ?„ , 5110 m FRANCIS THROOP SURVEY y s uey�� ' ABSTRACT No. 1511 \KJMeAL\_18A\ SOUTHLAKE, TARRANT COUNTY, TEXAS MAY 23, 2013 Y Texas Electronically Recorded T arrant Count Official Public Records 5/31/2013 4:37 PM D213 138788 / c PGS 36 $156.C?C�tlif;irt r '�R t AL RELEASE OF 8UfiittiND SIMPLIFILE LIENHOLD � tC N5 i$ N , I3 SUBORDI� A t'ION TO EASEMENT GREEME TS Date: May 16, 2013 Holder of Notes and Liens: State Bank and Trust Company Holder's Mailing Address: 2517 Midway Road, Carrolton, TX 75006 Affected Liens: Note No. 101329: Date: October 19, 2012 Original principal amount: $500,000 Borrower: Masco Service Corporation Lender: State Bank and Trust Company Maturity date: October 19, 2017 Deed of Trust: Date: October 19, 2012 Grantor of Lien: Brian Jeffrey Massey Lender: State Bank and Trust Company Trustee: Kevin M. flood Recording information: '.Cite Deed of Trust is recorded in the deed records of Tarrant County, Texas, as Document No. D21292706 Note No. 101.3'I1: Dale: October 19, 2012 Original principal amount: $1,200,000 (maximum credit limit) Borrower: Masco Service Corporation Lender: State Bank And Trust Company Maturity date: November 19, 20 13 Deed of l rust: Date: October 19, 2012 Grantor of Lien: Brian Jeffey Massey Lender: State Bank and Trust Company Trustee: Kevin M. Hood Recording information: The Deed of Trust is recorded in the deed records of Tarrant County, Texas, as Document No. D212292261 Note: ,.Jo , /01j3.7 Date: December 19, 2012 Original principal amount: $2,100,000 Borrower: Jeff Massey Real Estate, LLC' Lender: State Bank and Trust Company Maturity date: December 19, 2022 1 33428.7 Ra Whin "'ilk Comp Pity Ot Oct-0 S PARTIAL RELEASE OF LIEN AND LIENHOLDER CONSENT AND SUBORDINATION TO EASEMENT AGREEMENTS Date: May 16, 2013 This document has been electronically recorded by Holder of Notes and Liens: State Bank and Trust Company Rattikin Title Company Holder's Mailing .Address: 2517 Midway Road, Carrolton, TX 75006 niS18 flnided Affected Liens: Note No. 101329: Document Numbell,) ?Inn Date: October 19, 2012 Original principal amount: $500,000 Borrower: Masco Service Corporation Lender: State Bank and Trust Company WE CERTIFY THAT THIS IS A TRUE AND OOFFECT Maturity/ date: October 19, 2017 COPY OF THE ORIGINAL HEREOF, AS FILED FOR RECORD Deed of Trust: RATTIKIN TITLE COMPANY Date: October 19, 2012 BY ----- Grant or of Lien: Brian jet Massey Lender: State Bank and Trust Company' 71rustee: Kevin M. Flood Recording information: The Deed of Trust is recorded in the deed .records of Tarrant County, Tex.as, as Document No. D21292706 Note No. 101311: Date: October 19, 201.2 Original - principal. amount: S1.200,000 (maximum credit limit) Borrower: Masco Service Corporation 1..,ender: State Bank And Trust Company Maturity date: November 19. 2013 Deed of Trust.: Date: October 19, 2012 Grantor of .Lien: Brian Jeffrey Massey Lender: State Bank and Trtist Company Trustee: Kevin M. Hood Recording information: The Deed of Trust is recorded in the deed records ollarrant County, Texas, as Document No. D212292261 Note: 4 /013.3.7 Date: December 19, 2012 Original principal amount: $2,100,000 Borrower: Jeff Massey Real Estate, LLC Leader: State Bank and Trust Company Maturity date: December 19, 2022 1 33425.7 Deed of 'Trust: Date: December 19, 2012 Grantor of Lien: Brian Jeffrey Massey Lender: State Bark and Trust Company Trustee: Kevin M. f -food Recording intormation: The Deed of Trust is recorded in the deed records orTarrant County, texas, as Document No. L)21231 Financing Statement: Date: Recorded December 31, 2012 Debtor: Jeff Massey Real Estate. I.:LC Additional Debtor: Brian Jeff Massey Secured Party: State Bank and Trust Company Recording information: The Financing Statement is recorded in the deed records of Tarrant County. Texas, as Document No. D212318715 Property (including any improvements) to be released from the Affected Liens (the "Rigid-Of-Way Property "): See Exhibit 1, attached hereto and incorporated herein for all purposes. Laserent Agreements: A Non - Exclusive Utility and. Drainage Easement Agreement In Settlement Of Condemnation in favor of the City of Southlake in the form attached as Exhibit 2, and covering the property described in Exhibit A to Exhibit 2; and A Non- Exclusive Retaining Wall Easement Agreement In Settlement .OfCondemnation in favor - of the City of Southlake in the form attached as Exhibit 3, and covering the property described in Exhibit A to Exhibit 3. Property subject to easement agreements and the subject of lienholder's approval and consent (the " Easement Property- "): Sec. Exhibit A to 1 xhibit 2 and Exhibit A to Exhibit 3. hereto and incorporated herein for all purposes. For value received. State Bank And Trust Company, the holder of the above-referenced Notes and Liens, releases the Right -Of -Way Property from the Liens and from all liens held by the Holder of the Notes and Liens, without. regard to how they were created or evidenced.. i iris partial release does not release the remainder of the secured property described in the lien documents referenced above. Also for value received. State Bank And "Trust Company, the 1- folder of the above - referenced 1 Notes and Liens, consents to the grant of easements to the City of Sonthla.ke, Texas ("Grantee") on, under, and across the Easement Property, consents to the terms and conditions stated in the documents granting the casements, and subordinates all of Holder's rights and liens to the rights and interests of the Grantee in the Easement Property, so that a foreclosure of the Holder's liens, or any one of them, will not extin,uisl, the rights and interests granted to such Grantee in the Easements Property. When the context requires, singular nouns and pronouns include the plural. STATE TANK AND TRUST COMPANY .---7 67;pveGi/ By: 1, , r an ... G /e2rc . its: lir e Af,'.t Si"Z) t - r ACKNOWLEDGMENT STATE OF TEXAS § § COUNTY ON TARRANT § Be ore me, th l unde,zsigned authority in and for the State of Texas, on this day personally appeared � %A1r1A (AY i in ce-- , known to me (or proved to me on the oath of kr through _.._ -C D (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to the that he /she executed the same for the purposes and consideration therein expressed, and. in the capacity therein expressed, with Pull authority to so act. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 1.1 Z 0 day of May, 2013. IViy Commission Expires: q• 23• do N otary Public in and. for the State of Texas ii j'�d :: ERIKA RAE PETREY Typed ped or Printed Name of otary '•d ' MY COMMISSION EXPIRES ' =;r. += September 27, 2016 33428.7 1 , . • k • „,:,... „,,,,,r EXHIEiiT LEGAL DESCBiPTION [ PERMANENT Ft:Gig-OF-WAY E NORTH KIMBALL AVENUE PARCEL .15 i PENG r.,t i. eoie of and iocated in the FRANC'S THROCP StiRtilF,y”, il A5STRACT Ni) 1:7,1 I ".‘;•ok.iii Tarrant Couitite 1 and being 2 ::: a zracd cd ialld : tid Jeff Mdssey by h;-•t. detd rec,:oided ici ViAt.in',5: leil I Page : o the Deed Records of I arrant , ...ciiirity Te1a5.-... Said 1 e15 adri:e i.iif 'far being more pdaticulaIty descrtbil b irierti:ii:i end bourtds as TQIICWS i ii. Er.::iT,INNING al a - PK' nail kiudii at the =3oi.dheast ( i:.)1 .,;::::K.: Mi.,- Tbi:cf iiild lyind at it Le icier section or It iii.ii iiienteriibe el itlot Kireibail An ,i.ritri g. te ,:ientedine el 5 Highland Street, 71:.ENCE N 89 39' 2: : 33 .64 feet, along tie Sduth 5r:Aim irin .:It :ziii MasiFiey Tract, ..,o abbg the: ueileilir:e ot ii": I-lig:liar:id Street ii - THRcE N Do' 55 05' VV ,34,i48 feel 2l0lig the West bodactity line df• f., said fii,rit Traci, to a iron rod - narked "Britain & Crawfnid" set in the new North righl-i:,1-wav line of said 5 Higritand Street, i , 1 THENcE s 80" 38' 55' E 265.97 0e5. along he new Ncrth rigritfiNay e of Eald 7 - - . Highland Street, to a ',4," Iron - od marked - Brittain & Crawford' ,s. in Inc new Wreiiiiit hobt.-of-way Inc 0; said North Kirr.bal! Szreet. I 1 H.iiNCo ft_ting th l'•: VI:. 719;13-of-wy line of said Ncirth Kunt•all - ",:tie-ii:.ri. as foIiows ti 1 N 45 05 50' 5 3971 f=2 to a 'J.., iraii rod rriald;ed •Bidtlain & Crawford" s 2 N 00' 49' 31 si,, 478 08 feta, .:.,- inin ro5 Marked ' 51;tiLii■ 1 & 1 Crawford set in the North boundary Inc of said Massey ifaCi, !Ong in 1: the Sodth boundary line et a treic; 5 land tdcnveyed it..0 Richard Holliday and wife, Mary Ann Hoflictiay. by the deed riect)rd.iied in Volume 14355, t ii Pace 524 by the Deed Records of Tarrant County, Texas: t i i THENCE S tii.'.,:.:f 45' 37' F - 45 42 feet, ekiiN the North boundary Iri'le ut - i; tf szidi Massey Trard, on d thitit South rionnd;:lry line cf sato Holliday for. to a - PK" ne fe at the Nidriftdeist r:ornor at said Massey - 1 - 2!7;t, lying iri Inc r..:erterline of said North Kiintati Atiende: i 1 TH 5 art 34' 17" 5 '327.10 feet. along the East boundary liii rif g said Niiisseit 'I 1..!; r i d le e.P.E, ilF:e f:A Sr-±70 Nbdri Krntaii Avenue, to pi' ttN 3 rii" BEGIt'iJNING. cr:vitainthg 0 8 acie (.35,545 squari,-i, ifii-,:eli,i 3. i iei .t i i i, 1, f„ ,„„,m,:i=::: Et EXHIBIT „.. 1 ,4 ..,. liiSaitiligiasetZMUSWAR.Wliit" i I ' r 2 ,. let* r , . , .....,..,.......... _ „..„........_.,.., i I AREA TABLE , P.1Pt2t HCLLD4 1 AND W 0.516 ACRE TOTAL t.tA.Frt ANN HOLJDAr _. (.55, S43 S5 . v:) 1 ■.'S 24, n.R 7. ....., .1 ..• P t• 0,478 ACT-:E IN . ! S 89°45"37"E 1 PRESCMPTIVE 49.42' I RIC.,111-0I--WAY 0.358 ACRE NEI \ ! „.•-: t wii. , OcND TUMBLEWEED i f ! I 04,790 SG.17.) . 1,, ;■-tt: rH- ,,, k , q ,,P ,__„ ■ [ 'TRAIL 1 [ 1 . I l 1 / 1 <1 . .,..:1‘ 0 af --, , 1 t C3 1.•.-P • ...,,li ..% • ',A r-... ,1 ,,-, t .EFF MASSY l''' t'•<.' • to •4t ,,,,>'' .. --;.,- , ,..>,.., VOL. 15831, PG. 1 , -,--, 1 D-R.T,C.T. ' 1..1 ik.1[ , - ..'..1OH 7; ,.,,t • ,?•,..,1,: - t — t .,-;:f. . • . . i - ..2:1 ;,..e r i , ___„...„ -` "- '.. - ‘.....‘ CRIPPLE CREEK t. ,1 LAN .:•:.c•"' •:- ,...., i 1 , 0 1 ri CD 1 7 PERwtt.kr;■,„,; ,.., , ,•,. Rr - OF WAY L \ N 4500'00"E 1 1 . , 19.71' 1 , ' , ,. N 0035'05W 1 \ \ 1 t 34.93' I \ S 89"38'59"E i 1 .I, . 7 6° 97' \ I ,l,,.- • 1/2 IP.S "" ..-` .•# 1, 1 1 .1 .....,._,,,,.. 17,............Z. --- t= ' P`01N.T OF 1 1 p^ .■••■ , .o•-• CSEP.,'; N MN," . " ; .. . ,7P 4 • g ` l-----. '1 ti+ki.. FOUND I itti c',NrE.RtiNE i i I 'P,..':- ,,,, •, ;" DUN:: N CE iNE. Cr ROA: \ i c ; 1 PRESORiP iv.T.. ..‘,. ‘,..-. ••:,.'' ' ' P 1 i P ...,. ; i — . ; SM.Wri...17•(ZI) ON -. .'HE GRC'..-UND ,,,..,..1.0,-,•?'%,.. A, ,1-' ,,* i .717. I , 1.2•0 7, 20 1 t -,..• ,, ,F ''''2.. .,,.• ' ik, , ..,..... .,,------ 0 '..^..,VES L W,177.. 7',F , I 1 Lii, ' .. !, „- ,14 ,-- _., ii.a...:.... ., ,,,.. %.t 7 t 7,7 4, ,... • ,,..Y f. dk&'?5 1_ FE ,PrIT'AIN j pp. Cf.. NoT,- ' FESTED PA5x_ , i. ' DIM Pca..zt7.titl ,,b 'O• ;..., „k"...4":" I D SUV1,1”.K•1 STATE OF IF WP:). 1 674 .,,.:„.;R,,,,-, - Ai 1 1 ,7:::DR.Ni LAN _,RS SU ARE 1 1 ;,',/7'1 , :r.S) 'MTH I1AP WARM::: - .f.31?i , TAN d: CF.. 1 f. ...•..................T..."." me............**.r. - — - - - , CITY OF - ...-.70UTI , ILAKE 1 ic,,,'•\_ 1400 AN STREET, SOUTI-iLAKE, TEXAS, 76092 r -- I '.q NORTH KNBALL AVENUE, SH 11 4 TO ',:_i AST HiGHLAND STREET 1 1 1 EXHSIT "B`' BRITTLT.N & CR AWFORD 1 PERMANENT RIGHT--0E-WAY i ,1 i. ti ;.•;.• .„,,„, i ' F 0.S 1 6 ACRE OF LAND LOCATE...0 IN THE 1 X 7 RANCIS THROOP SURVEY "tin. t , A11 p., ltr i:.1., A3STRAC1 No. 1511 i 'yz , .. . 1 I SOUTHLAKE, TAR.RANT COUNTY, - P . 1"..0.1. ,, , TEXAS 1 5,,,,...,.. . , 00 1 NON-EXCLUSIVE UTILITY AND DR,AINAGE EASEMENT AGREEMENT IN SETTLEMENT OE' CONDEMNATION STATE OFTEXAS KNOW AFL MEN 8y THESE PRESENTS: COUNTY 0FTARD&NT 8 Effective uxof M.m/,Z0\] (the "Effective I)ate"> that Brian Jeffrey Massey u/k/a/Je0[ Massey, whose mailing address is 1 20() Kimbail Avenue. Southlake. TX 76()92. hereinafie calied "Grantor," for and in consideration ofTcn aiid No/l 00 1i)oIIa's (S 1 0.00) aiid othergoocl and valuablc consideration paid by The City of Swuth7ake, Texas, o municipal corporation, }400 Main Street, 6nothJukc Texas. 76002, hereinafter referred to as "Grantee," in settlement of a pending condemnation matter filed by Grantee and pursuant to this Non-Exclusive L)dli|I and Drainage Easement Agreement in Settlement Of Condemnation (the - Permanent lihy and Drainage Easement Agreement") has granted, and by these preserfls does grant unto said Grantee onon- exclusive utility" and drainage easement under and across a strip of land depicted as "Permanent Utility and Drainage Easement Property" on] Exhibit A and with o legal description ofdxcPonznucn1 Utility and Drainage Easement Property attached to this Permanent Utility and Drainage Easement Agreement ux Exhibit B (the "Permanent Utility and Dr8iDigc Easement Proper1y'' for (collectively the "Facili\ieu,):(h below-ground water, sanitary sewer, and water drainage lines and other below- around ci(yuvmnodu1Uidco;(ii)drubniu|etsuadcomdlcmincuuucodoowdb,mndasimoccenxory the Kimball Avenue road expansion project (1be"yn`ect"):uod (iii) other below-ground [ranchisc and be1ov-.ground pub!ic utilities, and in couneciion vith which the parties occentedugiotodds Permanent Utility and Draiiiage Easement Agreement, and, for all Facilities, only pursuant to the terrns and conditions set forth bdow: Together with the right of ingress and egress along and upon the Pcrouunoni Utility and Drainage Easement Property for the purpose °landvith the right. to construct:, reconstruct, maintain. repair, and make connections (o the Facilities, Grantor reserves the d�(mu�1�P�m�nQd|{���Dm� Easement Property - ` ^ ~ all pWOSCS that are not inconsistent with the specific rights granted to Grantee under this Permanent Utility and Drainage Easement Agreement. Without limitation, Grantor reserves the right 10 lav nut. dedicate. construct, maintain. cross, opera repair, retnove, replace, reconstruct, and use that pail of the surface of the Permanent Utility and Drainage Easement Property (to the extent not used by Graoioc bridges, underground telephone cables and conduits, fiber and communication conduits, and gns_ water and sewer pipe lines (collectively the "Allowable Improvements"), provided, however, the Allowable Improvements do not damage the Faci|itira: Grantee agrees to and shall construct, maintain. operate. repair, remove. replace, and reconstruct the below-ground Facilities at a least the depth shown un the plans for the currently planned improvements for the Pr ject. and to cooperate with Grantor, Grantor's ageo$_ and other utihty' providers 10 facilitate the installation ofany other above-ground nr below-around improvements, rvhubco 'oovvU1onLuoreuounnbhbcvi0Uhcid. / Grantor shall not use the Permanent 1.Jtilitv and Drainage Easement Property for landscaping, EXHIBIT � ) 3z4*.x signage, or lighting, other than grass cover on all parts of the Permanent Utility and Drainage Easement Property except that part on which a.re located above- ground facilities. without Grantee's written approval, which approval tivi..li not be unreasonably withheld, provided, however. that (_cantor shall have the right to plant flowers and shrubs (but no trees) on the Permanent Utility and Drainage Easement Property. No later than the conclusion of the work on the Project, Grantee will cover with St. Augustine grass sod of a good quality' all parts of the Permanent (ill ity a.nd Drainage Easement. Property except that part on which are located above-ground Facilities. Notwithstanding, anything= else in this Permanent Utility and Drainage Easement Agreement, Grantor shall have the right to pave (with concrete, asphalt, or other material), maintain, reconstruct, and repair the Permanent Utility .uid Drainage 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 Utility and Drainage .Easement Property (to the extent not used by (irantee for above- ground Facilities), and Grantee agrees to and shall install, cc.nstruct, 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 Utility and Drainage Easement Area. In the event Grantee's use of the Permanent Utility and Drainage Basement Area causes any damages to the Allowable lntprovements, Grantee agrees to restore within a reasonable time. at Grantee's soles cost, the A..Ilowable Improvements to their pre- damage condition. However. nothing contained in this Agreement shall constitute any required governmental approval of any contemplated improvements, including pavement, or otherwise relieve Grantor from complying with any applicable ordinances or obtaining any required perrnits and/or approvals prior to installation or construction of any proposed improvement, including paving, unless otherwise excused by the Settlement Agreement in Lieu of Condemnation between. Grantor and (.irantee or applicable h As a rnaterial part of the consideration for this Permanent Utility and Drainage Easement. i\ ieement, Grantee agrees that the use of the Permanent utility and Drainage Easement Property by Grantee and by (ira.ntec's successors and permitted assigns shall he restricted as follows: the Permanent Utility and Drainage Easement Property shall only be used for the Facilities. Grantor 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 Perrnarient Utility and Drainage Easement Property without the prior written consent of Grantor or Grantor's successor( s) in interest, which consent may be withheld for any reason whatsoever, subject to the conditions and exceptions set forth below. Grantor hereby consents to Grantee's agents, contractors, and franchise and public utility companies and their agents and contractors, performing work for Grantee on the Permanent 'Utility and Drainage Easement Property pursuant to the terms of this Permanent Utility and Drainage Easement Agreement. Grantee further may not assign or sell this Permanent Utility and Drainage Easement Agreement or any rights related to the Permanent Utility and Drainage Easement Properly except as set out below 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 Utility and Drainage J247a.4 Easement Agreement. Notwithstanding any of the above, however, to the extent that city ordinance or other governmental law or regulation authorizes or permits the installation of underground .tianchise or other underground public utilities in city-owned utility easements, this provision shall not prohibit or bar such use. Also, nothing contained in this Agreement shall prohibit Grantee from assigning the Permanent Utility and Drainage Easement to another governmental unit or entity that assumes control of th.e adjacent right-of-way, including but not limited to Tarrant County and the Texas Department of Transportation. This Permanent thility and Drainage Easement Agreement is made by Grantor and accepted by Grantee subject to the following additional exceptions, reservations, restrictions, conditions arid provisions: 1. The grant of rights und.er this Permanent Utility and Drainage Nasement Agreement is subject to: a) any and all of 1 following held or claimed by a governmental entity or utility provider, whether of record or not (i) validly existing prescriptive easements; (ii) visible and apparent rights of way; and (iii) visible and apparent prescriptive rights; h) all presently recorded easements, restrictions, reservations, covenants, conditions, oil and gas leases, .mineral interests, and water interests outstanding in persons other than (irantor; 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 Utility and Drainage Easement Property, Grantor's other property, or any part of any of the foregoing; 1) 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, provided, however to the extent that paving or .landscaping existing as of the Effecti Date overlaps or encroach upon the 'Permanent Utility and Drainage Easement Property. Grantee may demolish and remove such existing paving or landscaping, at Cirantee's sole cost and expense and in accordance with the terms of this Permanent Utility and Drainage Easement A.greement. 32474.8 • Z. The grant ofrights under this Permanen Utility and Drainage Eaueoen( Agreement ia subject to all visible encumbrances on, in, or affecting the Permanent Utility and Drainage Easement Property, Grantor's other ynnperty,nrum�ypur oI any o[ the foregoing, poovided, bu�orurdhu1(o de landscaping exixtinguso[ the Effective Date overlaps o, encroach upon the Permanent Utility and Drainage Easement Property, Grantee may demolish and remove such existin!: } Jo ' at Grantee's cd cost and and in accordance with the 1� [Lh� paving or no cupu���u nuu� � us euoy expense uucco un��p/' � ouso m PeonmneniUtility and Drainage l2uxoozcut Aurccrneui. 3. Grantee shall be entitled to use the Permanent Utility and Drainage Easement Popertyoo}c]y[hr<hepurx`oeuoxp/easlyact6n1bLuAduPonzuueniUd|irIumd[)cninugeEuoc/oeut Agreement and for no other purpose. Until a new driveway is constructed .from Kimball Avenue across the Permanent Utility and Drainage Easement Property io Grantor's property ozulocation approved in writing by Grantor, which approval shall not be unreasonably withheld, Grantee shol1 not close or impede access to Grantor's opeJty over and through the oxishngdriveways from Kimball that crosses the Permanent Utility and Drainage Easement Property, provided, however, Grantee may temporarily close one of Grantor's existing driveways from Kimball Avenue if: i) it is necessary and unavoidable thr utility relocation and other construction activities in connection with the Project; and ii) Grantee provides Grantor with an alternative, temporary access drive from Kimba!1 to Grantors property that is reaso.nably satisfactory to (irantor. During the Project, Grantee will: 0) provide continuous access front Grantor's properiy 10 Highland Street across the existing drive §om Grantor's property to Highland Street or an alternative, temporary access drive from Grantor's property to Highland Street that is reasonably satisfactory to Grantor; ii) provide continuous access to Grantor's entrances to the buildings located on Grantor's property andlor iii) not impede Grantor's miden/ulk on the east side of Grantor's property adjacent to Grantor's existing building. Oruu&zowU| not store, or ailow anv otlier person or entit to store. arw gasolirie, diesel or other fuel, oil, or any other dangerous, hazardous or toxic materials or compounds on the Permanent Utility and Drainage Easeinent Property. 4. It shall be Grantee's sole responsibility to ensure that the Facilities are installed so that they will not interfere with or uAec1 existing od|hjos, improvements, structures, and other encumbrances (except to the extent that paving or landscaping existing as of the Effective Date ovcdupu or encroach upundho Permanent Utility and Drainage Easement Property in v/)cbcusm Grxn|oemoydecun|isbmxjrunovcoco6mz{odngpuvingor!uodacapio8,a(Gruu1ee'osobcua(und expense and in accordance with the terms of this Permanent - Utility and Drainage Easement Agreement), that the Permanent Utility,' a.nd Drainage Easement Property is adequate for Grantee's intended and actual. use, and that Grantee's use of the Permanent Utility and Drainage - Easement Property complies with all state, federal, and local requirements for the excavation, construction, reconstruction, installation, operation, repair, u/uiuionuoce,renlaucnueoi, alteration and/or removal o[ Grun1co'sFacUkicy. 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 Perm.anent Utility and Drainage Easement Property so as to meet all regulatory rcquiromcn|000dobmDcnnup!c(euU»/mrkhnuuoonduuocvviUbChyofSoudUukc`Tozuxopccifiou1ioux, 4 32474.8 requirements, oud contracts. Grantee shall construct, bury, maintain, operate, repair, remove, i'eplace. and reconslruct the Facilities ri accordancc with City of Sou1hlnk.e, Texas specifications, requirements, and contracts, and in accordance wiili al! applicable federal, state and iocai laws, statutes, orders, ordinances, rules, regulation.s, standards, plans, pol.ici es and decrees. Grantee shall, ival}ucihibesuuderukoupurxuan{\ndzioPern'uncotUdUtyundl)naiougo|Euounun1/\grecmoni, cornply and require its contractors, agents and employees to comply Nvith all federal, state and local laws, statutes, orders, ordinances, rules, rrQu|udoun, standards, plans. poiicies and decrees. 6. Grantee will be solely zespunSih|e for the safety of all its employees, contractors, subcontractors, consultants, iovitccy,ogcntsuodoLbcrporymnywh000tcrontodhoPeonu/zrn\[bUit) and Drainage Easement Property at the direction or request nfGrantee. Fudbcr. Grantee shall require its general contractor to obtain adequate insurance covering personal i/'ory' death, and property damage from hislits activities and the activities ofits employees, subcontractors, con.sul tants or other agents entering the Permanent Utility and Drainage Easement Property on the Permanent Utiitv and Drainage Easement Property, Such insurance will be the primary insurance coverage for anv claims aiid (irantor's insurance. if. any, shall he eorisjdercd secondary insurance. 7. Grantee niUmaintain the Facilities in good condition in accordancc with City of Southiake and a.nv othcr applicable laws. ordinances, rules. and regu Upon completion orally construction, maintenance, repair, repair. reinoval. replacenient, reconstruction or otber \vork on or in iIie PrnuaucotUdlityaodI)ruiuuguEuaenen{Pnoperty,(3ruuiccobm||prumnpdyocotoncU8pnrto[1be ourtaceo[ibcPeonuncnt[7b\i(yuudDcuiougeEuoeoocn1Pnopezydha(isooiumcdDiznbove'Qrooud Facilities to a landscaped condition. consistent with the Project. l[ any otbcr portion of Grantor's property outside the Permanent Utility and Drainage Easement Property is damaged as a result of Grantee's activities, Grantee will promptly repair and restore such damaged. area to its pre-darnage condition. Grantor shall be entitled to receive from the City Secretary's office, upon request, copies of all as-built construction drawings for the Facilities to be k.cated on the Permanent Utility and Drainage Lasenient .Property ai thc later ol 60 days after Granlee completes construction and anv later reconstruction ot the Facilities or 30 dTys after (kantee receives such drawings. � 8. It /a expressly understood and agreed that this Permanent Utility and [)raaugc Easement Agreement does not constitute o cnu`cyuucu ln 'lee uf any part of the Permanent UiUUv and Drainage Easement Property o«u conveyance of :any interest in the oU` gas Oucudi/\g easinghead gas and al! gaseous suhstauces), hydrocarbons. olher iuineruls, water, sulphur. or odier niaterials in. on, and/or under the Permanent Utility and .Drainage - Easement Property, which rights are ex.pressly retained by Grantor, but only grants the non-exclusive easement rights specifically provided in this Permanent Utility and Drainage Eomcnn.uz /�groomeo/; if the Permanent Uh|ity and Drainage Easement Propert is suhject to existing production or an existing lemcLNuncsenmtionimdudes{kc production, the lease, and all benefits - from. it provided, however, that neither Grantor nor Grantor's agents or assigns shall explore 6`r, mine or drill for or otherwise produce the water, oil. gas tincludiT! casinghead gas and all gaseous substances), hydrocarbons, or any other inin.erals reserved herein, from or on the surface of the Permanent Utility and - Drainage Easement Property, but Grantor shall have the right to produce the water, oil, gas, hydrocarbons, and other . minerals reserved herein °DIV by directional drilling or other indirect means at a depth of not less than two hundred feet (.200'") 3zn*, below the surl:ace in a manner which does not enter upon, or interfere with Grantee's rights under this Permanent Utility and Drainage Easement Agreement. 9. Grantee shall not permit to be placed against the Permanent Utility and Drainage Easement Property, Grantor's other property, or any part of tither, any design professionals`, mechanics', tnatcrialnren's contractors' or subcontractors' liens with regard to Grantee's actions and activities upon or affecting the Permanent Utility and Drainage Easement Property. GR.ANTFE A(. REES, TO THE EXTENT PERMITTED BY LAW, TO HOLD THE GRANTOR HARMLESS FOR ANY LOSS .A.RISING FROM ANY SUCH LIENS WHICH MIGHT BE FII.,ED AGAINST GRANTOR'S PROPERTY, INCLUDING' %'I'I'.HOUT LIMITATION •l'111 PERMANENT UTILITY AND DRAINAGE EASEMENT PROPER'.J '. THE INDEMNITY AND ()TRIER RIGHTS AFFORDED BY THIS SECTION SMALL SURVIVE "FIIF TFRMINK ION AND EXPIRATION OF THIS PERMANENT UTILITY AND DRAINAGE EASEMENT AGREEMENT. 10. The rights granted under this Permanent 1_tilty and Drainage Easement Agreement are granted until. the Facilities or use of the Permanent Utility and Drainage Easement Property shall be Abandoned, and in that event such rights shall cease and all rights granted under this Permanent Utility and Drainage 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 Utility and Drainage Easement Property for the purpose herein granted, .for a continuous period of five years and the Grantee agrees that it has no further intent to use the Permanent Utility and Drainage Easement Property for any of the permitted purposes, 11. No termination or expiration of the Permanent Utility and Drainage Easement Agreement shall release Grantee from any liability or obligation under this Permanent Utility and Drainage Easement Agreement. 12. In the event of a dispute between the parties with respect to the terns or conditions of, or the rights or obligations under, this Permanent Utility and Drainage Easement Agreement, the prevailing party shall he entitled to collect from the other party its reasonable attorneys' fees. 13. if a court finds any provision of this Permanent Utility- and Drainage 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. 'lo the extent feasible, any provision found to be invalid or unenforceable shall be deemed to be modified to he valid and enforceable: however, ifa material provision cannot be so modified, then such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Permanent Utility and Drainage Easement Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein, and the remaining provisions of this Permanent. Utility and Drainage l asement Agreement will remain in effect. 14. This Permanent Utility and Drainage Easement Agreement is not valid or binding on 6 32474.8 any party unless executed by all of the parties listed below. This Permanent utility and Drainage 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. 13. The provisions of this Permanent Utility and Drainage Easement Agreement shall extend to and be binding upon Grantee and Grantor and their permitted successors and assigns, i at n'. 15. Grantee agrees turd represents that: (i) this Permanent Utility and Drainage Easement Agreement is binding on Grantee 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 (j1 C'arroition - v. Singel 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 Utility and Drainage Easement Agreement, Grantee 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 UTILITY AND DRAINAGE EAS.EMENT PROPERTY PURSUAN 1 AN AGREEMENT .BETWEEN THE P.ARTIES IN SETTLEMENT OF CONDEMNATION. THE CONSIDERA.TION WAS BAR(IAI NEI) ON THF. 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 PROVI.D.ED H.E.REIN, IFANY. GRANTEE HAS NOT RELIED ON ANY INFORMATION PROVIDED BY GRANTOR OR ANY PERSON OR ENTITY ACTING ON GRANTOR'S BEHALF OR FOR WHOM c .R.A.NTOR .RAS RESPONSIBILITY OTHER THAN GRANTEE'S INSPECTION. TO HAVE AND TO HOLD unto Grantee, without warranty of title, either expressed or implied. for the tern hereina.fter set forth, and subject to the terms, conditions, limitations, reservations, and exceptions contained in this Permanent Utility and Drainage .Easement „Agreement, until the Facilities or use of the Permanent Utility and - Drainage Easement Property shall be Abandoned as provided in this Permanent Utility' and Drainage Easement Agreement, and in that event said Permanent u tility and Drainage Easement Agreement shall cease, all rights herein granted shall terminate, and all rights to use the Permanent Utility and Drainage Easement Property shall automatically revert to Grantor or Grantor's heirs, successors, assigns and/or legal representatives. REMAINDER OF PAGE INTENTIONALLY BLANK 7 32474.8 . . EXECUTED to be effective as of May 2913 CRANTOR: GRANTEE: BRIAN JEFFREY MASSEY CITY OF SOUTREAKE, TEXAS By: Brian. Jeffrey Massey The honorable John Terrell, Mayor 1200 North Kimball A \ enue 1400 Main Street Southlake, Texas 76092 Southlake. Texas 76092 Attest: A lisha Richardson. City Secretary REMAINDER OF PAGE INTENTIONALLY BLANK 8 32,17<i ^ ' ACKNOWLEDGMENTS STATE OF TEXAS 8 " COUNTY OF TARRANT § Betore me. the undersigned authoiity in and for the State of Texas. on this day personally appeared BRIAN JEFFREY MAS0]C`K known to me (o/ proved to me on the oath of ur through [description n[ identity card mr other documcni]} to be the person 'ahose 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 Oy OFFICE, this the day o[ May. Z0|3. Notary Public in and for The State o[Texas My Commission Expires: Typed or Printed Name o[Notary S'FATE OF TEXAS � COUNTY OF TARRANT § Before me, the undersigned authority in and for the State of Texas, on this day personal]) appeared the Honorable JOHN l[0RRE|LL' Mayor of the City o[BouUdukc_ known to me (or proved 10 me on the oath of or through [description of identitv card or other documentl) to he the person whose name jusubscribed to the hzreaoiug instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. and in the capacity therein expressed. GIVEN UNDER KlY HAND [IANI) AM) SEAT. OF OFF!C'E. t the day of May, 201I Notary Puhtic in and for The State olTexas \1y Commission Expires: . Typed or Printed Milne o[Notary 9 32474 8 Exhibit "A" Survey of Permanent Lid litv and Drainal&c Easement Property 10 321748 , . . . , 1 ' , . „ : i >,w,T.'7;::: 1 i . , .. • ,,, ! T U 4f;.E.: r- FT ''," , . , '•:-.• ."-•:".. " 4. '.."... ,•:',. L •;•.: „ - ; i. . . • ; . •`" "i ',-;.:',1,: ::;•.:.•-•; " „ . '',,..;',''','; ,.. f ...,. r,...,,,,_:: „•.•, , , . `-- '', ' •-'. ...7:; : ; , '..",..";',„ 1 1"..:";3": , l'' -... , "•::','.. ;,•:•"-.. '''',„ ::•'. • > , ... ... . ' ! „,,, •!:„": ! , ,:: • ; - - .-..., -..-;-',: ; ' . ,'•-:,'-'- : :-.'• '.7,`... '1,R; P F-'' '..E Ci"...T Fr. E '..: , , ' r -; ., :;• ,:,... '''.: L.A, V E. . ' . • ' ' , .. . ...._, , ; . - ..7,:::"; I •-„," ' , . ! . ' . , . . i •'.., - . : ..,... -.'. . . S -,:-:;"';':':' •.'; ' C:.:::.; ''";:i i ',. : , ' . 7." !" ..:: -, • "z...„-.; „,", . .., ; : . , . , . ., •!' • - : . .... " ,. . ,..., ; . F ' ', - ;',',' ;,•;:"' T ....,' ,,..... .•,'" '' 0, ;', 7' '•:. t;:)... :,,,,..'f:,:)u 7, ',,,,_.. ,,, `', :,.", 7:: : ES F:, ;-' , :73: 0 Li :"„ -....::,•;':,', F. ,. . ' V''• . k :-.. .... A 1 4k- i i ...,:-;....,?:,,-.,,,,,,.,:,..,- ,,,,.. (7, -. 1:- ir '•I., "•-•4.;' •-J,'';';''''.;"'''i' 1 ...'; T ':-',.. ;FIY ; E''' R.;',.; '''. . ':.%, :.; E : ,,,,,.,,,,:::,....,,, " 0 ',,,,-- ' I ' '!,- . -' ' '' -TT'' , ,:-J:-.: T'. '''''';',L L. EA 5, ',... -;<‘; .... i' •,'",-:':-, .,,,, '4.':"; i 4t; ,, . .. . „,. : - . .. ,,..„ ''''t5.*'' ! .! ! Exhibit "B" Lc a1 Description ()I' Permanent lid lity and Drainw Easement Proprty 11 :2474 8 tt:t•tzAtt:Ett tt tt:•4 t„.t t.,„„ttt.t. t tittt—tti r:tt et', ar„,A,?ItItt „,„•t„ trt Vt tt; • '4',41•UV;fiffigrli"A'fcfin4P:ZerNS:'ji9..:4 Exhibit "C" Exceptions To Title From Title Commitment 1 2 32474.8 . . SCHEDULE B EXCEPTIONS FROM COVERAGP GFNumbec 09'34451 In additon to the Exclusions and Conditions and Stipulations, your Policy will not cover loss. :cda, attorney's fees, and experses resulting From: 1. The following restrictive covenants of record itemized below (We must either insert specific recording data or delete this exception): In policy to be issued, |tesnNo. 1 will be deleted. 2. Any discrepances, conflicts, , or shortages in area or boundary lines, or any enonzoohmont or protrusions, or any overlapping of improvements. 3,----Hoqnestemd-or-commoupitA»mpertyor.aurvivomA4viQAnsrf. nyi fha-G .> 4. Any titles orrights asserted by anyone, inc|uding, but not Iimited in, peroono, the pub|in, cn/pnmkmna, governmerits or other entities, a to tidelands, or lands comprising the shores or beds of navigable or perennial rivers and streams, |ukea, bayo, 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 fiiied-in lands, or artiicia islards, or d. to statutory water rights, including riparian nghts, or e. to the area extenthng from the ine ef mean ow tide to the ine cf vegetation, cr the rights of access to that area or easement along and across that area (Applies (o the Owner Policy on|yj 5. Standby fees, �xaeand osaeoomon�by any �xngau�o/tyfor �eyear 2O13. and subsequent yemo; � and subseqo and assessments by any taxing authority for phnryeemdue 8z change inland usage or awnership, butmddhose�o*sanr assessments for prior yeam because of an exemption granted d Section 1� 13 TsxaeTax Code orbac�uoeofimpmvem�n� �ompmviouuuwnerof�hnPnoPedy«n under � »» � ' i |k8 Code, poU (T- R)i issued, not assessed for ap�v)oua tax year. (If Texas Sho�Form Reedenda Mortgagee cy -� is s that policy wUl substitute 'whch becorne due and payable subsequentto Date of Policy" in lieu of "for the year 2013 arid subseauent years.") 6. The terms and conditionS of the docurnenis creating your interest in the Jand. 7. d"~ed -mortgage:--(Appflesic-Mortgagee Policy Residential-fvlortgagee-Polley,ef-Title Insufance--(T-2R).. (App-lies--to Texas-Short Form--Residential 10. The following matters and all tenns of the documents creating or offering evidence of the matters (We must insert matters or delete this exception.): (09-044:1 P=om9-0445113o FORM r'r:Commitment, for Ti/ie|n»"ra»»e(Schedule R,TliKIN TITLE CC 4AN r' FORT WORTH ,5 B) EXHIBIT SCHEDULE B (Continued) GFNumb*r: 09-04451 a Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the title that woud be disclosed by an accurate and complete rid survey of the and. (Note: Upon receipt of a survey acceptable to Company, this exception will be deleted. Company reserves the right to add additional exceptions per its examination of said survey.) b. Easement for right-of-way recorded in Volume 2063, Page 351, Deed Records of Tarrant CountV.Texae. c. Easement for hgbt-of+vey recorded in Volume 2O$3. Pace 353. Deed Records oF Tarrant County. Texas. d. Easement for right-of-.way granted to TEXAS POWER & UGHT COMPANY by instrument recorded in Voume 8220, Page 437, Deed Records of Tarrant County, Texas. �. ' g. Terms, noodi�ona.and eb lease � Lynn Massey, as Lessor, and New Cingular Wireless PCS, LLC, as Lessee, a Memorandum of which is filed for record under Clerk's File No. D212219369, Deed Records of Tarrant County, Texas. h - w-possesstop (0e'04451rrD109'04*51 FORM T-r.cnmmmnentmr Title Insurance (Schedule TITLE COMPANY FORTWORTH TEXAS rItt EXHIBIT NON - EXCLUSIVE RETAINING WALL, EASEMENT AGREEMENT IN SETTLEMENT OF CONDEMNATION STA"iE C1: TEXAS § KNOW ALL N4 EN BY THESE PRESENTS: COUNTY OF 71 Effective as of May 2013 (the "Effective Date") that Brian Jeffrey Massey a /k /a /Jeff Massey, NA mailing address is 1200 Kimball Avenue. Southlake, "1'X 7609?. hereinafter called "Grantor," For and in consideration ol and N0/100 Dollars ($ 10.00) and other good and valuable consideration paid by The City of Southlake, Texas, a municipal corporation, 1400 Main Street. Southlake Texas, '6092, hereinafter referred to as Grantee, " in settlemem of a rending condemnation matter filed by Grantee and pursuant to this Non Exclusive Retaining Wall Easement Agreement: In ;settlement Of Condemnation ( the "Penntinent Retaining Wall Easement Agreement") has granted" and by these presents does grant unto said Grantee a non - exclusive retaining wall easement under and across a strip of land depicted as "Permanent .Retaining Wall Easement Property" on I x[iibit A and with a legal description of the Permanent Retaining Wall Easement Property attached to this Permanent Retaining Wall Easement Agreement as Exhibit B (the "Permanent Retaining Wall .Easement Property ") for a retaining wall and related soil grading and 1.1 surface concrete drainage flume to drain water from Grantor's property (the "Facilities ") in connection with, and as is necessary for, the Kimball ,\venue road expansion project (the "Project "): pursuant to the terms and conditions set forth below: Together with the right of ingress and egress along and upon the Permanent Retaining Wall Easement Property for the purpose of and with the rig to construct, reconstruct. maintain. repair.. and make connections to the Facilities. Grantor reserves the right to use the Permanent Retaining Wail Easement Property for all purposes that are not inconsistent with the specific rights granted to Grantee under this Permanent Retaining Wall 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 oi:'the Permanent Retaining Wall Easement Property (to the extent not used by Grantee for above - ground Facilities) for underground telephone cables and conduits. fiber and communication conduits, and gas, cvater and sewer pipe lines (collectively the. "Allowable Improvements "), provided. however, the Allowable Improvements do not carnage the r iLilities :. Grantee agrees to and shall construct, maintain, operate. repair, remove, replace. and reconstruct the Facilities in accordance with the plans for the currently planned improvements for the Project_ and to cooperate with Grantor, Grantor's 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 Retaining Wall Easement Property for landscaping, sigriage. or lighting, other than grass cover 011 all parts of the Permanent Retaining Wall Easement Property except that part 00 which are located above - ground facilities, without Grantee's written approval, which approval will not be unreasonably withheld, provided.. however, that (irantor shall have the right to plant flowers and shrubs (but no trees) on the Permanent Retaining Wall. Easement EXHIBIT '' ' 1 •. r N C �! Property. No later than the conclusion of the work on the Project:, (Grantee wilt cover \with St. Augustine grass sod of a good quality all parts of the Permanent Retaining Nall Easement Property except that part on which is located above- ground Facilities. In the event Grantee's use of the Permanent Retaining Wall t:;aser ent Area causes any damages to the Allowable Improvements, Grantee agrees to restore within a reasonable dine, at Grantee's soles cost, the Allowable Improvements to their pre - damage condition. However, nothing contained in this :-\.greem.ent shall constitute any required governmental approval of any contemplated improvements, including pavement, or otherwise relieve Grantor from complying with any applicable ordinances or obtaining any required permits and/or approvals prior to installation or construction of any proposed improvement unless otherwise excused by the Settlement greernent in Lieu of Condemnation between Grantor and Grantee or applicable law. As a material part of the consideration for this Permanent Retaining Wall Easement Agreement, Grantee agrees that the use of the Permanent Retaining Wall Easement Property by Grantee and by Grantee's successors and permitted assigns shall be restricted as tollows: the Permanent Retaining Wall Easement Property shall only be used for the Facilities. Grantor and Grantee agree that this restriction shall be a covenant that runs with the land. Grantee may not lease or sublease, or errant any property or possession rights of any kind, to or within the Permanent Retaining Wall Easement Property without the prior written consent. o f Grantor or Grantor's successors) in interest, which consent may be withheld for any reason whatsoever, subject to the conditions and exceptions set forth below. Grantor hereby consents to Grantee's agents and contractors performing work for Grantee on the Permanent Retaining Wall .Easement Property; pursuant to the terms of this Permanent Retaining 11Vail Easement Agreement. Grantee further may not assign or sell this Permanent. Retaining Wall Easement Agreement or any rights related to the Permanent Retaining Wall Easement Property except as set: out below wyitiu+ut 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 farce 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 Retaining Wall Fa.sement .agreement. Also, nothing contained in this Agreement. shall prohibit Grantee from assigning the Permanent Retaining Wall Easement to another governmental unit or entity that assumes control of the adjacent right-of-way, including but not limited to Tarrant County and the Texas Department of 'l'ransportation. This Permanent Retaining Wall Easement Agreement is made by Grantor and accepted by Grantee subject to the following additional exceptions, reservations, restrictions, conditions and provisions: I . The grant of rights under this Permanent Retaining Wall Easement Agreement is subject to: a) any and all of the following held or claimed by a governmental entity or 33715.-1 utility provider, whether of record or not: (i) validly existing prescriptive easements; (ii) visible and apparent rights of watt; and (iii) visible and apparent prescriptive rights: h) all presently recorded easements, restrictions, reservations, covenants, conditions. oil and gas leases, mineral interests, and water interests outstanding in persons other than Grantor; c) validly existing utility casements created by recorded dedication deed or plat; d) matters described on Exhibit 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 Retaining Wall Easement Property, Grantor's other property, or any part of any of the foregoing: any discrepancies, conflicts, or shortages in area or boundary lines; and h) any encroachments or overlapping of improvements, provided, however to the extent that paving or landscaping existing as of the .Effective Date overlaps or encroach upon the Permanent Retaining Wall Easement Property, Grantee may demolish and remove such existing paving or landscaping. at Grantee's sole cost and expense and in accordance with the terms of this Permanent. Retaining Wall Easement Agreement. 2. The grant of' rights under this Permanent Retaining Wall Easement Agreement is subject to a.11 visible encumbrances on, in, or affecting the Permanent Retaining Wall. Easement Property, Grantor's other property, or any part of any of the foregoing, provided, however that to the extent that paving or landscaping existing as of the :Effective Date overlaps or encroach upon the Permanent Retaining Wall Easement Property, Grantee may demolish and remove such existing paving or landscaping, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Retaining Wall Easement Agreement. 3. (.grantee shall be entitled to use the Permanent Retaining Wall Easement Property solely for the purposes expressly set forth in this Permanent Retaining Wall Easement Agreement and for no other purpose. Until a new driveway is constructed from. Kimball Avenue across the Permanent Retaining Wall .Easement Property to Grantor's property at a location approved in writing by Grantor, which approval shall not be unreasonably withheld, Grantee shall not dose or impede access to Grantor's property over and through the existing driveways from. Kimball that crosses the Permanent Retaining Wall Easement Property, provided. however, Grantee may temporarily close one of Grantor's existing driveways from Kimball Avenue if: i) it is necessary and unavoidable for utility relocation and other construction activities in connection with the Project.: and ii) Grantee provides Grantor \vith an alternative, temporary access drive from Kimball to Grantor's property that 3 332 I.5.4 • is reasonably satisfactory to Grantor. During the Project, Grantee will: (1) provide continuous access l'om Grantor's property to highland Street across the existing drive from Grantor's property to Highland Street or an alternative, temporal) access drive from Grantor's property to llighland Street that is _reasonably satisfactory to Grantor: ii) provide continuous access to Grantor's entrances to the buildings located on Grantor's property and/or iii) not impede Grantor's sidewalk on the east side of Grantor's property adjacent to Grantor's existing. building. Grantee will not store, or allow any other person or entity to store, any gasoline, diesel or other fuel, oil, or any other dangerous, hazardous o toxic materials or contpound.s on the Permanent Retaining Wall 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 oi:h.er encunibr:'ances (except to the extent that paving, driveway, or landscaping existing as of the Effective Date overlaps or encroach upon the Permanent Retaining Wall Easement Property in which case Grantee "nay demolish and remove such existing paving, driveway, or land.scapu g, at Grantee's sole cost and expense and in accordance with the terms of this Permanent Retaining Wall Easement Agreement), that the Permanent. Retaining Wall Easement Property is adequate for Grantee's intended and actual use, and that Grantee's use of the Permanent Retaining Wall Easement Property complies with all state, federal, and local requirements for the excavation, construction, reconstruction, installation, operation, repair, maintenance, replacement, alteration andior removal of (:irantee's l acili.ties, 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 an or affecting the Pernlanent..Retaining Wall Easement Property so as to meet all regulatory requirements and shall complete all work in accordance with City of Southlake, Texas specifications, requirements, and contracts. Grantee shall. construct, 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 Retaining Nall 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 .fnr the safety of all its employees, contractors, subcontractors, consultants, invitees, agents and other persons who enter onto the Permanent Retaining Wall Easement Property at the direction or request of Grantee. Further. Grantee shall require its general contractor to obtain adequate insurance covering personal injury, death, and property damage from his/its activities and the activities of its employees, subcontractors, consultants or other agents entering the Permanent Retaining Wail Easement Property on the Permanent Retaining Wall Easement Property. Such insurance will be the primary insurance cov=erage for any claiims and Grantor's insurance, if any, shall be considered secondary insurance. 7. Grantee will maintain the Facilities in good condition in accordance with City of South.lake and any other applicable laws_ ordinances, rules, and regulations. Upon completion of any construction. maintenance, repair, removal, replacement, reconstruction or other work on or in the Permanent Retaining Wall Easement Property, Grantee shall promptly restore that part of the surface ofthe Permanent Retaining Wall Easement Property that is not used for above - ground facilities to a landscaped condition consistent with the Project. If any other portion of Grantor's property outside the Permanent Retaining Wall 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. Grantor shall be entitled to receive from the City Secretary's office, upon request, copies of all as -built construction drawings for the Facilities to be located on the Permanent Retaining Wall. Easement Property at the later of60 days after Grantee completes construction and any later reconstruction of the Facilities or 30 days after Grantee receives such drawings. 8. It is expressly understood and agreed that this Permanent Retaining Wall Easement Agreement does not constitute a conveyance in fee of any part of the Permanent Retaining Wall 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 Pennanent Retaining Wall Easement Property, which rights are expressly retained by Grantor, but only grants the non - exclusive easement rights specifically provided in this Pernanent Retaining Wall Easement Agreement; if the Permanent Retaining Wall Easement Property is subject to existing production or an existing Iease, 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 or, 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 Retaining Wall Easement Property, but Grantor shall have the right to produce the Water, oil, gas, hydrocarbons, and other minerals reserved herein only by directional drillini7 or other indirect means at a depth of not less than two hundred feet (200') below the surface in a manner kvltich does not enter upon, or interfere with Grantee's rights under this Permanent Retaining Wall. Easement Agreement. 9. Grantee shall not permit to be placed against the Permanent Retaining Wall Easement Property, Grantor's other property, or any part of either. any design professionals', mechanics', materialrnen.'s contractors' or subcontractors' liens with regard to Grantee's actions and activities upon or affecting the Permanent Retaining Wall Easement Property. GRANTEE AGREES, TO THE EXTENT PERMITTED BY LAW, TO IIOLD THE GRANTOR HARMLESS FOR ANY LOSS ARISING FROM. ANY SUCH LIENS WHICH MICII'I' BE FILE!) .AGAINST GRANTOR'S PROPERTY, INCLUDING WI'T'HOUT LIMITATION 1 HE PERMANENT .RETAINING WALT. EASEMENT MENT PROPERTY. THE INDEMNITY A.ND OTHER RIGHTS AFFORDED BY THIS SECTION SHALL SURVIVE THE TERMINATION AND EXPIRATION OF PHIS PERMANENT RETAINING WALL EASEMENT AGREEMENT. 10. The rights granted under this Permanent Retaining Wall Easement Agreement are granted until the Facilities or use of the Permanent Retaining Wall Easement Property shall be Abandoned, and in that event such rights shall cease and all rights granted under this Permanent Retaining Wall 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 ;,215.4 defined as the non-use of the Facilities or the Permanent Retaining Wall Easement Property for the purpose herein. granted, fbr a continuous period of five years and the Grantee agrees that it has no ti!rther intent to use the Permanent Retaining Wall Easement Property for any of the permitted purposes. I 1. No •termination or expiration of the Permanent Retaining Wall Easement Agreement shalt release Grantee from any liability or obligation under this Permanent Retaining Wall Easement Agreement. 12. In the event oCa dispute between the parties with respect to the terns or conditions oil or the rights or obligations under, this Permanent Retaining Wall 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 Retaining Wall 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 he so modified, then such invalidity, illegality, or unenf:orceahility shall not affect any other provision hereof and this Permanent Retaining Vv'all Easement Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained. herein, and the remaining provisions of this Permanent Retaining Wall Easement Agreement will remain in effect. 14. This Permanent Retaining Wall Easement: Agreement is not valid or binding on any party unless executed by all of the parties listed below. This Permanent Retaining Wall Easement Agreement may be executed in one or more counterparts, each of which shalt be deemed an original but all of which together shall constitute one and the same instrument. 15. The provisions of this Permanent Retaining Wall Easement Agreement shall. extend to and be binding upon Grantee and Grantor and their permitted successors and assigns, if an.. 15. Grantee agrees and represents that: (t) this Permanent Retaining Wail Easement Agreement is binding on Grantee and enforceable as an. agreement in settlement of condemnation under Texas A &19 University- lCin,gst'ille n. Lawson, 87 S.W.3d 518 (Tex. 2002) and C7t 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 Retaining Wall Easement A.greement, Grantee 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 RETAINING WALL EASEMENT PROPERTY PURSiUA.NT TO AN .AGREEMENT BETWEEN TH:i PARTIES IN SI:` 'TLIN,MENT OF CONDEMNATION. THE C:ONSiDERA`I'.ION WAS BARGAINED ON THE BASIS OF AN "AS IS, WHERE IS" TRANSACTION AND REFLECTS THE 6 _.x'.15.1 AGREEMENT OF THE PARTIES 'I'EIA.T THERE ARE NO REPRESENTATIONS OR EXPRESS OR IMPLIED WARRANTIES EXCEPT AS EXPRESSLY PROVIDED HEREIN, IFANY, GRANTEE HAS NOT RELIED ON ANY INFORMATION PROVIDED BY GRANTOR OR ANY PERSON OR ENTITY ACTING ON GRANTOR'S BEHALF OR FOR WHOM GR,-ANTOR HAS RESPONSIBILITY OTHER THAN GRANTEE'S INSPECTION. .1.O HAVE AND TO HOLD unto Grantee, without warranty of title, either expressed or implied, for the term hereinafter set torch, and subject to the terms, conditions, limitations, reservations, and exceptions contained in this Permanent Retaining Wall Easement: Agreement, until the Facilities or use of the Permanent Retaining Wall Easement Property shall be Abandoned as provided in this Permanent Retaining Wall Easement Agreement. and in that event said Permanent Retaining Wall Easement Agreement shall cease, all ,rights herein granted. shall terminate, and all rights to use the .Permanent Retaining Wall Easement Property shall automatically revert to Grantor or Grantor's heirs, successors, assigns and/or legal representatives. EXECUTED to be effective as of May 2013. GRANTOR: GRANTEE: BRIAN .IEFFREY MMM'IASSEY CITY OF SOUITHLAKE, TEXAS Brian Jeffrey Massey The Honorable John Terrell, rvtayor 1200 North Kimball Avenue 1400 Main Street Southlake. "Texas 7609 Southlakc, Texas 76092 Attest: Aiisha Richardson, City Secretary REMAINDER OF PAGE INTENTIONALLY BLANK ::215A ACKNOWLEDGMENTS STATE OF TEXAS COUNTY OF TARRAN'1' § Belpre ine. the undersigned authority in and for the State of Texas, on this day personally appeared BRIAN JEFFREY M ASSEY, known to me for proved to me on the oath of or through __...__ [description of identity card or other document]) to he the person whose name is subscribed to the foregoing instrument and acknovyledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day o I May. 21)! 3. Notary Public in and for The State of Texas My Commission Expires:., Typed or Printed Name of - Notary STATE OF TEXAS § § COUNTY OF TARRANT § Before me. the undersigned authority in and for the State of Texas. on this day personaily appeared the Honorable JOHN TERRELL Mayor of the City of Southlake, known to me or proved to one 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 sauce for the purposes and consideration Therein expressed, and in the capacity therein expressed. GIVEN UNDER \1Y HAND AND SEA1 OF OFFICE, this The day of May, 2013. Notary Public in and for The State of Texas My Commission Expires; Typed or Printed Name of Notary 8 33215 4 Exhibit "A" Survey of Permanent Retaining Wail Easement Property 9 33;u5-1 b , , R'CHARD HOLLIDAY AND wIri.:', MARY ANN 110LUD.AY V01.. 14325, PG, 524, D.R.T.C.T. ._J z J fr INOR WEST CORNER 1 / co : MASSEY TRACT / i "PK" NAIL FOUND i: 1/2 IRON ROO SET . 4..? o q I TUMBLEWEED 1 tk c< 1 ■ L,..1 TRAIL .:P ._. : 1 N 89"10`29E 10.00" 1 N 00°49'31W 25.00'----. 4 POINTIOF BEGiNNING 5 891029W 7.00*---/. 1 , I i JEFF MASSEY -• - —1 RIG:Tr OF' WAY VOL. 16881, PG. 198 1 I •m•T D.R.T.C.T. ',.)T 3, T:-E H,...:..."-OTTION VOL za5-159. PG. 9.6 ! .ZD PERMANENT WALL < L___ ' I EASEMENT _ 10.025 ACRE / 1075 SQ.FT. Z:8 ''''„ 1 .7,-0 CRIPPLE CREEK LANE z , c > .) 0 Ix RIGHT-OF-WAY L,1NE 1 \ S 89"10'29"W 1 \ 3.00'-----. /2," IRS ,• SUR:./EY LiNE j CENIERLiNE ROAD ..v3---- "PK" NAIL FOUND _ ,.-'------- ____ __ 1 "-- SOUh CORNER _ .. . __ i . OF MASSEY TRACT PK" NAIL I- 01_:!ND :N ' I Cl F R L iW: (34, ROAD 4.7-• . N. ,.... 1 ' , • 'N I? ; _ .-,• e .,;:. 0 , 1 k ii ...1, \-‘-. PROPERTY CORNER NO ALL PROPERTY CORNERS SET ARE 72' 'RON RODS SCALE 1" 100' (1/2"iRs) wriii CA' MARKED "3R11 & C9AWFORD" CITY OF SOUTHLAKE 1400 MAIN STREET, SOUTHLAKE TEXAS, 76092 , u \-::----/ , • NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET . . ... EXHIBIT "B" BRITTAIN AzeRAIlfORD A, 0' ., oF ti•l • 1. ua m: ; -y: ' AND SU iVE1NNG & PERMANENT WALL EASEMENT • ' ',, * ° sr:l.z.;, OPO UM N.2APH!C: IM; ,,/ JAMES L ..._`.. . 0.025 ACRL OF LAND , y \.,,,., K .-. '.,p_ Iii , , , , , t NH ;517) 926-8.341 LOCATED IN THE 4, v - •4' , ^,- sle'e, , v t , C. MM ■ .14 . MHA SOUTH .,,EEWAr FRANCIS THROOP SURVEY VI'°'§'•fiA:21 5E f TA1 MATH, ATm-9 7G1H1 t.LL,,,,,, ABSTRACT No. 1511 NOVEMen 2, 2011 , i;;;E ... 4, SOUTI-ILAKE, TARRANT COUNTY, TEXAS vogkAa\ rs-15\ REVISED MAY 10, 20i3 lizitmaggetep r Exhibit "B" Leal Description of Permanent Retaining Wail Easement Property 1 0 33215 • EXHIBIT "A" LEGAL DESCRIPTION PERMANENT WALL EASEMENT NORTH KIMBALL AVENUE PARCEL 15 BEING 0,328 acre of and located in the FRANCIS THROOP SURVEY. ABSTRACT No. 1511. Soutmexo. Tarrant County, Texas. and being n»ortionof a tract of and conveyed to Jeff fvlassey, by the deed recorded in Volume 10881 Page 198 of the Deed Records of Tarrant County, Texas. Said 0.028 acre of land bcing marc parlicuary described by metes and hounds as follows. BEGINNING at a point in the new West right-of-way line of North Kimball Avenue, and lying N an 45' 37 vV 49 42 feu, and S 00~4e'3VE 9288 /eet, from a 'PK' nail found marking the Northeast corner of said Massey Tract. Said Point of Begnnng also /ymg in the new West ,ioht'of war line of North Kimball Avenue, THENCE 5O0^49' 31^E 300.00 ose|, along the new ;Nest right-of-way inc af said North Kimball Avenue, »za point: THENCE SD9~ 10' 29^VY 3.00 feet, to a point THENCE N 00` 49 31^ W 27500 fee, along a line 3 feet West of Pnd parallel to the new West ngot-of-way inc of said North Kimball Avenue, to oPoint; THENCE S08 29"xY 700 feet, to a poin THENCE N 00` 49' s1 vv 25o0 oasu, along a line 10 feet West of and parallel to the new West dgh,�f-way line of said North Kimball Avenva, to apoint; THENCE NG9~1D20`E 10 00 feet, to the POINT OF BEGINNING, containing 0.028 acre (1,075 square feet) of land. EXHIBIT e Exhibit "C" Exceptions To Title From Title Commitment I .3215-1 ^~ ^ SCHEDULE B EXCEPTIONS FROM COVERAGE GFNumbec 09-04451 In addition to the Exclusions and Conditions and Stipulations, your Policy will not cover loss, costs, attornev's fees, and expenses resuting from: 1. The following restrictive covenants of record itemized below (We must either insert spacific recording data or delete this exceptcrij: In policy tobeissued, Item No. 1 will bedeleted 2. Any discrepancies, oon0icto, or shortages in area or boundary lines, or any encroachments orprotrusions, or any overlapping ofimprovements. -_--n_ P' -e.n ' 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 comprisina the shores or beds of navigable or perennial rivers and streams, akes, bays, gulfs ar oceans, or b. to lands beyond the line of the harbor or bulkhead lines as established or chanaed 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 extendinci 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. (Applias to the Owner Policy only.) 5. Standby fees, taxes and aeoesomen�hy any taxing auihuhiy�vthe year 2O13. and subsequent years; and subsequent taxes and assessments by any taxing authority for prior years due Vz change inland usage or ownership, but not those taxes or assessments for prior years because of ar exernotion granteci Section 11 13 TexaaTax Cnde nmvamonto ioopravmuao�neroftheP'»P�dyund e* e »n Short Residential K8�' no�aoaeosod�o/apnaviouo�axyemr�(|fTex�au�o Form Mortgagee issued, that policy will substitute "which become due and payable subsequent to Date of Policy" in Iieu of "for the year 2O13 and subsequent yeam.'') 6. The terrns and conditions of the documents creating your ntereat in the Iarid. 7 - Mate w* e��o�/e���#�l��b��� e��u���m���e��*�e�s��� - �� in to Mortgageeenty`) 9:— — �@ � �efF�����U�e�����ha=���m�e�en�� Residential-Mortgagee-Poky-of-Title e 10. |kefoonwmgmene/no/maot=..=="=~~~.......^~_--- n" or offering evidence of the matters (We must insert matters or delete this exception.): (09'04451.rpum9-0 FORM T-7: Cornmiimafl far Tffle h'.surance (Schedule 11TLE COMPANY, FORT WORTH, TEXAS 8) EXHIBIT SCHEDULE B (Continued) GF Number: 00-04451 a. Any encroachment, encumbrance, violation. variation, or adverse circumstance affecting the title that wcud be disclesed by an accurate and campete and survey of the land. (Note: Upon receipt of a survey acceptable to Cornpny, this exception wiH be deleteci Company reserves the right to add additional exceptions per its exarnination of said survey.) b. Easement for right-of-way recorded in Volume 2063, Page 351, Deed Records of Tarrant County, Texas. c. Easement for right-of-way recorded in Volume 2063, Page 353, Deed Records of Tarrant County, Texas. d. Easement for right-of-way granted to TEXAS POWER & LIGHT COMPANY by instrument recorded in Volume 8220. Page 437, Deed Records of Tarrant County, Texas. -is-data g. Terms, and Massey � - conditions, randNewQngu|arVVire|emmPCG yNemnmndumcAvvmon/s Ly»»kAa*s*y`�o�eau»^ �' File D212219369, Deed LLC, eoLesnee.a mofTarran��oun� 5ledforreco/� umUerue/ s No. . Records . Texas. � _-' __-_ - (09-04451,ppD/o90445 FORM r-7: Commitment tor Title Insurance (Schedule RaTImmnTLE CmwpAw� FORT WORTH, TEXAS 3) EXHIBIT ‘11, RAI June 19, 2013 City of Southlake Attn: Robert Price 1400 Main St. Southlake, TX 76092 Re: RTC GF #: 09 -04451 Property Address: 1200 N Kimball Ave Southlake, TX 76092 Dear Mr. Price: We are pleased to enclose the title policy in connection with the above referenced transaction. The original instruments have been filed for record, and we have requested that the Tarrant County Clerk return any appropriate documents to you once they have been recorded. 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, `�h I Shay Townsend Escrow Officer stownsend@rattikintitle.com Downiown OC(ict • 201 Me Street, Suite 800 • Fort Worth, Texas 76102 - 31005 • Phone 81 7.332.1171 • Fax 817.877.4237 <1itle,co1u • s 0 CHICAGO TITLE INSURANCE COMPANY Policy No.: OWNER'S POLICY OF TITLE INSURANCE (T -1) Issued by CHICAGO TITLE INSURANCE COMPANY Any notice of claim and any other notice or statement in writing required to be given the Company 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 13 AND Ti 1I CONDITIONS, CHICAGO TIME INSURANCE: COMPANY, a Nebraska 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 land survey of the Land. The term "encroachment" includes encroachments of existing improvements located on the Land onto adjoining land, and encroachments onto the Land of existing improvements located on adjoining land. (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 govermmental 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, 7239843 (2/10) Owner's Policy of Title Insurance T -1 (2/01/10) 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 tiled 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. CHICAGO 'mix INSURANCE COMPANY 1 N A ATT45 ( PrewlanC Authorized l S � j � ' g Shay Tow send �' ���• 4 s,ay.ry TX2373 09 -044 1 Rattikin Title Company 201 Main Street, Suite 800 Fort Worth, TX 76102 Tel: (817) 332 -1171 Fax: (817) 877 -4237 7239843 (2/10) Owner's Policy of Title Insurance T -1 (2/01/10) " T CHICAGO TITLE INSURANCE COMPANY OWNER'S POLICY OF TITLE INSURANCE T -1 SCHEDULE A Name and Address of Title Insurance Company: Chicago Title Insurance Company 2001 Bryan St., #1700 Dallas, TX 75201 File Number: 09 -04451 Policy Number: Address for Reference only: 1200 N Kimball Ave Southlake, TX 76092 Amount of Insurance: $ 476,000.00 Date of Policy: May 31, 2013 Premium: $3,008.00 1. Name of Insured: City of Southlake, a 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 utility and drainage created by that certain Non - Exclusive Utility and Drainage Easement Agreement in Settlement of Condemnation from Brian Jeffrey Massey a /ka/ Jeff Massey to The City of Southlake, dated May 31, 2013, filed for record under Clerk's File No. 213138790, Deed Records of Tarrant County, Texas. TRACT 3: Non - Exclusive Easement Estate for retaining wall created by that certain Non - Exclusive Retaining Wall Easement Agreement in Settlement of Condemnation from Brian Jeffrey Massey a /ka/ Jeff Massey to The City of Southlake, dated May 31, 2013, filed for record under Clerk's File No. 213138791, Deed Records of Tarrant County, Texas. 3. Title to the estate or interest in the land is insured as vested in: City of Southlake, a municipal corporation 4. The land referred to in this policy is described as follows: Three tracts of land out of the FRANCIS THROOP SURVEY, Abstract No. 1511, Tarrant County, Texas, being more particularly described by metes and bounds on Exhibit A attached hereto. FORM T -1: Owner's Policy of Title Insurance Schedule A (09- 04451.PFD/09- 04451/80) Rev. 05 -01 -08 RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS CHICAGO TITLE INSURANCE COMPANY SCHEDULE B File No.: 09 -04451 Policy No.: 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. rccording data or delete this exception): 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 right -of -way recorded in Volume 2063, Page 351, Deed Records of Tarrant County, Texas. b. Easement for right -of -way recorded in Volume 2063, Page 353, Deed Records of Tarrant County, Texas. c. Easement for right -of -way granted to TEXAS POWER & LIGHT COMPANY by instrument recorded in Volume 8220, Page 437, Deed Records of Tarrant County, Texas. d. Terms, conditions, and stipulations of Oil, Gas and Mineral lease, a Memorandum of which is dated effective June 9, 2008, filed for record under Clerk's File No. D208247624, 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 (09- 04451.PFD/09- 04451/81) Rev. 05 -01 -08 RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS , SCHEDULE B (Continued) File No.: 09 -04451 Policy No.: e. Terms, conditions, and stipulations contained in lease agreement between Jeff Massey and wife, Jodie Lynn Massey, as Lessor, and New Cingular Wireless PCS, LLC, as Lessee, a Memorandum of which is filed for record under Clerk's File No. D212219369, Deed Records of Tarrant County, Texas. f. Interest in all water, oil, gas, and other minerals as reserved in Deed in Settlement of Condemnation recorded under Clerk's File No. D213138789, 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. g. Terms, conditions and stipulation of that certain Non - Exclusive Utility and Drainage Easement Agreement in Settlement of Condemnation from Brian Jeffrey Massey a /ka/ Jeff Massey to The City of Southlake, dated May 31, 2013, filed for record under Clerk's File No. 213138790, Deed Records of Tarrant County, Texas. h. Terms, conditions and stipulations of that certain Non - Exclusive Retaining Wall Easement Agreement in Settlement of Condemnation from Brian Jeffrey Massey a /k/a/ Jeff Massey to The City of Southlake, Texas, dated May 31, 2013, filed for record under Clerk's File No. 213138791, Deed Records of Tarrant County, Texas. i. Terms, conditions and stipulations of that certain Temporary Construction Easement between Brian Jeffrey Massey a /k/a/ Jeff Massey to The City of Southlake, Texas, dated May 31, 2013, filed for record under Clerk's File No. 213138792, Deed Records of Tarrant County, Texas. j. Terms, conditions and stipulations of that certain Non - Exclusive Joint Use Private Access Easement from Brian Jeff Massey to Richard Holliday and Mary Ann Holliday dated June 1, 2013, filed for record under Clerk's File No. 213138794, Deed Records of Tarrant County, Texas. FORM T -1: Owner's Policy of Title Insurance Schedule B (09- 04451.PFD/09- 04451/81) Rev. 05 -01 -08 RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS Office File Number Policy Jacket Number Date of Endorsement Amount of Insurance Type Code Rule 1 2 3 4 5 9 09 -04451 May 31, 2013 $ 476,000 00 EN 0801 R -29.1 MINERALS AND SURFACE DAMAGE ENDORSEMENT - OWNER POLICY T -19.2 Attached to Policy No. Issued By CHICAGO TITLE INSURANCE COMPANY Attached to Policy No. Applies to Parcel(s): Three tracts of land out of the FRANCIS THROOP SURVEY, Abstract No. 1511, Tarrant County, Texas, being more particularly described by metes and bounds on Exhibit A attached hereto. The Company insures the insured against loss which the insured shall sustain by reason of damage to improvements (excluding lawns, shrubbery, or trees) located on the Land on or after Date of Policy resulting from the future exercise of any right existing at Date of Policy to use the surface of the Land for the extraction or development of coal, lignite, oil, gas or other minerals excepted or excluded on Schedule A, Item 2 or excepted in Schedule B. This endorsement does not insure against loss resulting from subsidence. This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements. CHICAGO TITLE INSURANCE COMPANY Authorized Countersignature w t * " ,sNi ., . „ _ . .. „,.... RATTIKIN OMP ► t t :: - 5 1 . :* c . /44 ,,, )46 A By: t` : * * * 34 ► A , I - N V r FOR INFORMATION, OR TO MAKE A COMPLAINT CALL: (888)934 -3354 ENDORSEMENT T -19.2 Owner Policy Endorsement Texas Form T -19.2 Effective 11 -01 -09 (09- 04451.PFD/09 04451/82) RATTIKIN TITLE COMPANY, FORT WORTH, TEXAS � T EXHIBfi "A" LEGAL. DESCRIPTION P 5> HEtr'r R}GH OF -WAY NORTH KIMBALL AVENUE (PARCEL 15 BEING 0.516 acre of land located in the 'FRANCIS THROW SURVEY, ABSTRACT Na. 4511, S Make,. Tarrant County, 'F011vs. and. bed a .portion of a. tract of land conveyed to ,led M ssey, by the deed recarde - in %%liana 16881 Page 19S. of the Deed Retorts of Tarrant. County. Teas. Said 0:816 acre DI land being more partiCulaily descabed by metesand rounds es iu8uws: BEGINNING at a "PK" nail found at the Sot east corner of said Massey Tract, and lying at the intersection of the center** at North Kirrdt+a1 Avenue. with • the centerline of E. Highland Str2-1: THENCE 14 89 25" W 331 .64 feet. albrg the South botthdarY rine o said Massey Tract, and airing the oenierline cif E. Highland Street; THENCE N t)U" ass' 06` W 34:98 feet along the West boundary fine of said Massey Tract, to a :4` bon rod marked ' Br6Cain & Crav 1bre set in the new Nixth night- of-way fine of•said E Rani , Stnalt THENCE S fir 38' 59 E 269.07 feast, along the new Na right - Of-way ate of said E. Highland Street to a lson rod - misdeed litrittain & Crawford' sat in the new West nigh -rf way line of said North Kimball Street; THENCE along the new West rigid- of-way line of said North Kimball Street, as follows'. 1. N 45' 00" 00' E 19.71 feet, to a W iron txxi snorted `Brittein & Crawford' set 2. ti 00' 49' 3i'W 478.08 feet, to a W iron rod narked ` irittatn & Crawford` sex at the Nixon boundary & e of Said •fitaSsey Tract lying in the South .boundary fine of a tract of Zara main ey ed to Rrc hand Hofklay and wife, May Ann may, by the deed recorded iriVolurne 14325, Page 524, by the Deed'Redards of Taarartt:Couny. Teas; THENCE S 89' 45 3T E 49.42 feet, airing the North boundary line of sad Massey Tract. and the South boundary line of said Holliday Tract, to a 'PK" nail found at the Norther corner of said Massey Tract, lying in the centerline of said North Kimball Avenue: THENCE S 00' 36' 17" E 527.10 feet, edong the East boundary lure of said•Massey Tract, and the aline of said North Kanbail Avenue, to t POINT OF BEGINNING, containing 0:816 acre (35,543 square feet) of land. NOTE: COMPANY DOES NOT REPRESENT THE ABOVE AGREAGE OR SQUARE FOOTAGE CALCULATIONS ARE CORRECT. TrA 4 2 EXHIBIT "A" LEGAL DESCRIPTION PERMANENT UTILITY, DRAINAGE AND WALL EASEMENT NORTH KIMBALL AVENUE PARCEL 18 BEING 0.111 acre of land located in the FRANCIS THROOP SURVEY, ABSTRACT No_ 1511, South ake, Tarrant County, Texas, and being a portion of a tract of land conveyed to Jeff Massey, by lice deed recorded in Vokane 16864, Page 198. of the Deed Records of Tarrant County. Texas. Said 0.111 acre of land being more particularly described by metes and bounds as follows: BEGINNING at a W on rod marked 'Brittain & Crawford" set in the North boundary line of said Massey Tract, and tying N 89' 45' 3T W 49.42 feet. from a "PK" nail found marking the Northeast corn of said Massey Trail. Said Point of Beginning also tying in the new West right- of -way line of North Kimball Avenue: THENCE S 00' 49' 31' E 478.08 feet along the new West right - of-way line of said North Kimball Avenue, to a W iron rod marked 'Brfttairt 8 Crawford', set THENCE S 45' 00' 00' W 13.94 feet to a point TFENCE N 00' 49' 3V W 487.98 feet, to a point in the North boundary line of said Massey Tract THENCE S 88' 45 37' E 10.00 feet, along the North boundary line of said Massey Tract, to the PONT OF BEGINNING. containing 0.111 acre (4830 square feet) of land. NOTE: COMPANY DOES NOT REPRESENT THE ABOVE AGREAGE OR SQUARE FOOTAGE CALCULATIONS ARE CORRECT. , s c EXHIBIT "A" LEGAL DESCRIPTION �t PERPAANENT WALL EASEMENT NORTH K1ilMBALL AVENUE PARCEL 15 BEING 0.028 acre of and located in the FRANCIS THROOP SURVEY, ABSTRACT No. 1511, SQu thlalae, Tarrant County, Texas, and being a portion of a tract of land oonveyed to Jeff Masser, by the deed recorded in Volume 18881, Page 198, of the Deed Records of Tarrant County, Tpcas. Said 0.028 acre of and being more parl'rcutarly descdoed by metes and bounds as follows: BEGINNING at a point in the new West right -ofray line of North Kimball Avenue, and lying N 89' 45' 37' W 49.42 feet, and S 00 1 4531 "E 92.80 feet, from a "PK' nail found marking the. Northeast comer of said Massey Tract. Said Point of Beginning also lying in the new West right-of -way fine of North Kimball Avenue; THENCE S 00° 49' 31' E 300.00 feet, along the new West right- of-way line of said North' Kimball Avenue, to a point: THENCE S 89° 10' 29' W 3.00 feet, to a point; THENCE N 00' 49' 31' W 275.00 feet, along a fine 3 feet West of and parallel to the new West right -of -way line of said North Kimball Avenue, to a point; THENCE 5 89' 10 29" W 7,00 feet, to a point; THENCE iN 00° 49' 31' W 25.00 feet, along a fine 10 feet West of and parallel to the new West rigitof -way line of said North Kimball Avenue, to a point THENCE N 89' 1 29' E 10.00 feet, to the POINT OF BEGINNING, containing 0.025 acre (1,075 square feat) of land. NOTE: COMPANY DOES NOT REPRESENT THE ABOVE AGREAGE OR SQUARE FOOTAGE CALCULATIONS ARE CORRECT. EXCLUSIONS FROM COVERAGE The billowing 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 land described in ScheduleA because of Umnarketable Title. CONDITIONS 1. DEFINITION OF TERMS, clerk of the United States District Court for the district where the Land The following terms when used in this policy mean: is located. (a) "Amount of Insurance ": the amount stated in Schedule A, as may be (j) - Title": the estate or interest described in Schedule A. increased or decreased by endorsement to this policy, increased by (k) "Unmarketable Title ": Title affected by an alleged or apparent matter Section 8(b), or de- creased by Sections 10 and 11 of these Conditions. that would permit a prospective purchaser or lessee of the Title or lender (b) "Date of Policy": The date designated as "Date of Policy" in Schedule A. on the Title to be released from the obligation to purchase, lease or lend if (c) `Entity ": A corporation, partnership, trust, limited liability company or other there is a contractual condition requiring the delivery of marketable title. similar legal entity. 2. CONTINUATION OF INSURANCE. (d) "Insured ": the Insured named in Schedule A.. The coverage of this policy shall continue m force as of Date of Policy in favor (i) The term "Insured" also includes: of an Insured, but only so long as the Insured retains an estate or interest in the (A) successors to the Title of the Insured by operation of law as Land, or holds an obligation secured by a purchase money Mortgage given by a distinguished from purchase, including heirs, devisees, purchaser from the Insured, or only so long as the Insured shall have liability survivors, personal representatives or next of kin; by reason of warranties in any transfer or conveyance of the Tide. This policy (13) successors to an Insured by dissolution, merger, consolidation, shall not continue in force in favor of any purchaser from the Insured of either (i) distribution or reorganization; an estate or interest in the Land, or (ii) an obligation secured by a purchase (C) successors to an insured by its conversion to another kind of money Mortgage given to the Insured. Entity; 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT. (D) a grantee of an Insured under a deed delivered without payment The Insured shall notify the Company promptly in writing (i) in case of any of actual valuable consideration conveying the Title: litigation as set forth in Section 5(a) below, or (ii) in case Knowledge shall (1) If the stock, shares, memberships, or other equity interests come to an Insured hereunder of any claim of title or interest that is adverse of the grantee are wholly -owned by the named Insured, to the Title, as insured, and that might cause loss or damage for which the (2) If the grantee wholly owns the named Insured, Company may be liable by virtue of this policy. If the Company is prejudiced (3) If the grantee is wholly -owned by an affiliated Entity of by the failure of the Insured Claimant to provide prompt notice, the Company's the named Insured, provided the affiliated Entity and the liability to the Insured Claimant under the policy shall he reduced to the extent named Insured are both wholly -owned by the sane of the prejudice. person or Entity, or When, after the Date of the Policy, the Insured notifies the Company as (4) If the grantee is a trustee or beneficiary of a trust created required herein of a lien, encumbrance, adverse claim or other defect in Title by a written instrument established by the Insured named insured by this policy that is not excluded or excepted from the coverage of in Schedule A for estate planning purposes. this policy, the Company shall promptly investigate the charge to determine (ii) With regard to (A), (B), (C) and (D) reserving, however, all rights whether the lien, encumbrance, adverse claim or defect or other matter is and defenses as to any successor that the Company would have had valid and not barred by law or statute. The Company shall notify the Insured in against any predecessor Insured. writing, within a reasonable time, of its determination as to the validity or (e) "Insured Claimant ": an Insured claiming Toss or damage. invalidity of the Insured's claim or charge under the policy. If the Company (1) `Knowledge" or "Known ": actual knowledge, not constructive knowledge concludes that the lien, encumbrance, adverse claim or defect is not covered or notice that may be imputed to an Insured by reason of the Public by this policy, or was otherwise addressed in the closing of the transaction in Records or any other records that impart constructive notice of matters connection with which this policy was issued, the Company shall specifically affecting the Title. advise the Insured of the reasons for its determination. if the Company (g) "Land ": the land described in Schedule A, and affixed improvements that concludes that the lien, encumbrance, adverse claim or defect is valid, the by law constitute real property. The term "Land" does not include any Company shall take one of the following actions: (i) institute the necessary property beyond the lines of the area described in Schedule A, nor any proceedings to clear the lien, encumbrance, adverse claim or defect from the right, title, interest, estate or easement in abutting streets, roads, avenues, Title as insured; (ii) indemnify the Insured as provided in this policy; (iii) upon alleys, lanes, ways or waterways, but this does not modify or limit the payment of appropriate premium and charges therefor, issue to the Insured extent that a right of access to and from the Land is insured by this policy. Claimant or to a subsequent owner, mortgagee or holder of the estate or interest (h) "Mortgage ": mortgage. decd of trust, trust deed, or other security in the Land insured by this policy, a policy of title insurance without instrument, including one evidenced by electronic means authorized by exception for the lien, encumbrance, adverse claim or defect, said policy to be law. in an amount equal to the current value of the Land or, if a loan policy, the (i) "Public Records ": records established under state statutes at Date of amount of the loan; (iv) indemnify another title insurance company in Policy for the purpose of imparting constructive notice of matter connection with its issuance of a policy(ies) of title insurance without relating to real property to purchasers for value and without exception for the lien, encumbrance, adverse claim or defect; (v) secure a Knowledge. With respect to Covered Risk 5(d), "Public Records" shall release or other document discharging the lien, encumbrance, adverse claim also include environmental protection liens filed in the records of the or defect; or (vi) undertake a combination of(i) through (v) herein. 7239843 (2/10) Owner's Policy of Title Insurance T -1 (2/01/10) In case of a claim under this policy, the Company shall have the following 4. PROOF OF LOSS. additional options: In the event the Company is unable to determine the amount of loss or damage, (a) To Pay or Tender Payment of the Amount of Insurance. the Company may at its option, require as a condition of payment that the To pay or tender payment of the Amount of Insurance under this policy Insured Claimant furnish a signed proof of loss. The proof of loss must describe together with any costs, attomeys' fees and expenses incurred by the the defect, lien, encumbrance or other matter insured against by this policy that insured Claimant that were authorized by the Company up to the time of constitutes the basis of loss or damage and shall state, to the extent possible, the payment or tender of payment and that the Company is obligated to pay. basis of calculating the amount of the loss or damage. Upon the exercise by the Company of this option, all liability and obligations of 5. DEFENSE AND PROSECU'i'ION OFACI'IONS. the Company to the insured under this policy, other than to snake the payment (a) Upon written request by the Insured, and subject to the options contained required in this subsection, shall terminate, including any liability or in Sections 3 and 7 of these Conditions, the Company, at its own cost and obligation to defend, prosecute, or continue any litigation. without unreasonable delay, shall provide for the defense of an Insured in (b) '1'o Pay or Otherwise Settle With Parties Other than the Insured or With litigation in which any third party asserts a claim covered by this policy the Insured Claimant. adverse to the Insured. This obligation is limited to only those stated (i) to pay or otherwise settle with other parties for or in the name of causes of action alleging matters insured against by this policy. The an Insured Claimant any claim insured against under this policy. In Company shall have the right to select counsel of its choice (subject to addition, the Company will pay any costs, attorneys' fees and the right of the insured to object for reasonable cause) to represent the expenses incurred by the Insured Claimant that were authorized by insured as to those stated causes of action. It shall not be liable for and the Company up to the time of payment and that the Company is will not pay the fees of any other counsel. The Company will not pay obligated to pay; or any fees, costs or expenses incurred by the insured in the defense of (ii) to pay or otherwise settle with the insured Claimant the loss or those causes of action that allege matters not insured against by this damage provided for under this policy, together with any costs, policy. attorneys' fees and expenses incurred by the Insured Claimant that (b) The Company shall have the right, in addition to the options contained were authorized by the Company up to the time of payment and that in Sections 3 and 7, at its own cost, to institute and prosecute any the Company is obligated to pay. action or proceeding or to do any other act that in its opinion may be Upon the exercise by the Company of either of the options provided for in necessary or desirable to establish the Title, as insured, or to prevent subsections (b)(i) or (ii), the Company's obligations to the Insured under this or reduce loss or damage to the insured. The Company may take any policy for the claimed loss or damage, other than the payments required to be appropriate action under the terms of this policy, whether or not it shall made, shall terminate, including any liability or obligation to defend, prosecute be liable to the Insured. The exercise of these rights shall not be an or continue any litigation. admission of liability or waiver of any provision of this policy. If the 8. DETERMINATION AND EXTENT OF' LIABILITY. Company exercises its rights under this subsection, it must do so This policy is a contract of indemnity against actual monetary loss or damage diligently. sustained or incurred by the insured Claimant who has suffered loss or Ic) Whenever the Company brings an action or asserts a defense as required damage by reason of matters insured against by this policy. or permitted by this policy. the Company may pursue the litigation to a (a) The extent of liability of the Company for loss or damage under this final determination by a court of competent jurisdiction and it expressly policy shall not exceed the lesser of: reserves the right. in its sole discretion, to appeal from any adverse (i) the Amount of Insurance; or judgment or order. (ii) the difference between the value of the Title as insured and the value 6. DUTY OF INSURED CLAIMANT TO COOPERATE. of the Title subject to the risk insured against by this policy. (a) In all cases where this policy permits or requires the Company to prosecute (b) If the Company pursues its rights under Section 3 or 5 and is unsuccessful or provide for the defense of any action or proceeding and any appeals, in establishing the Title, as insured: the insured shall secure to the Company the right to so prosecute or (i) the Amount of Insurance shall be increased by 10 %, and provide defense in the action or proceeding, including the right to use, at (ii) the Insured Claitnant shall have the right to have the loss or its option. the name of the Insured for this purpose. Whenever requested damage determined either as of the date the claim was made by the by the Company, the Insured, at the Company's expense, shall give the Insured Claimant or as of the date it is settled and paid. Company all reasonable aid (i) in securing evidence, obtaining witnesses, (c) In addition to the extent of liability under (a) and (b), the Company will prosecuting or defending the action or proceeding, or effecting also pay those costs, attorneys' fees and expenses incurred in settlement, and (ii) in any other lawful act that in the opinion of the accordance with Sections 5 and 7 of these Conditions. Company may be necessary or desirable to establish the Title or any other 9. LIMI'T'ATION OF LIABILITY. matter as insured. If the Company is prejudiced by the failure of the (a) If the Company establishes the Title, or removes the alleged defect, lien Insured to furnish the required cooperation, the Company's obligations or encumbrance, or cures the lack of a right of access to or from the Land. to the Insured under the policy shall terminate, including any liability or all as insured, or takes action in accordance with Section 3 or 7, in a obligation to defend, prosecute, or continue any litigation, with regard to reasonably diligent manner by any method, including litigation and the the matter or matters requiring such cooperation. completion of any appeals, it shall have fully performed its obligations (b) The Company may reasonably require the Insured Claimant to submit to with respect to that matter and shall not be liable for any loss or damage examination under oath by any authorized representative of the caused to the Insured. Company and to produce for examination, inspection and copying, at such (h) In the event of any litigation, including litigation by the Company or with reasonable times and places as may be designated by the authorized the Company's consent, the Company shall have no liability for loss or representative of the Company, all records, in whatever medium damage until there has been a final determination by a court of competent maintained. including books, ledgers, checks, memoranda, jurisdiction, and disposition of all appeals, adverse to the Title, as correspondence, reports, emails, disks, tapes, and videos whether insured. bearing a date before or after Date of Policy, that reasonably pertain to (c) The Company shall not be liable for loss or damage to the Insured for the loss or damage. Further, if requested by any authorized representative liability voluntarily assumed by the Insured in settling any claim or suit of the Company, the Insured Claimant shall grant its permission, in without the prior written consent of the Company. writing, for any authorized representative of the Company to examine, 10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF inspect and copy all of these records in the custody or control of a third LIABILITY party that reasonably pertain to the loss or damage. All information All payments under this policy, except payments made for costs, attorneys' designated as confidential by the Insured Claimant provided to the fees and expenses, shall reduce the Amount of insurance by the amount of the Company pursuant to this Section shall not be disclosed to others payment. unless, in the reasonable judgment of the Company, it is necessary in the 11. LIABILITY NONCUMULATIVE. administration of the claim. Failure of the Insured Claimant to submit The Amount of Insurance shall be reduced by any amount the Company pays for examination under oath, produce any reasonably requested under any policy insuring a Mortgage to which exception is taken in information or grant permission to secure reasonably necessary Schedule B or to which the Insured has agreed, assumed, or taken subject or information from third parties as required in this subsection, unless which is executed by an Insured after Date of Policy and which is a charge or prohibited by law or governmental regulation, shall terminate any lien on the Title, and the amount so paid shall be deemed a payment to the liability of the Company under this policy as to that claim. Insured under this policy. 7. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; 12. PAYMENT OF LOSS. TERMINATION OF LIABILITY. When liability and the extent of loss or damage have been definitely fixed in 7239843 (2/10) Owner's Policy of Title Insurance T -1 (2/01/10) - accordance with these Conditions, the payment shall be made within 30 days. authenticated by an authorized person, or expressly incorporated by 13. RIGHTS OF RECOVERY UPON PAYMENT OR SETTLEMENT, ScheduleA of this policy. (a) Whenever the Company shall have settled and paid a claim under this policy. (d) Each endorsement to this policy issued at any time is made a part of it shall be subrogated and entitled to the rights of the Insured Claimant in this policy and is subject to all of its terms and provisions. Except as the the Title and all other rights and remedies in respect to the claim that the endorsement expressly states, it does not (i) modify any of the terms and Insured Claimant has against any person or property, to the extern of the provisions of the policy, (u) modify any prior endorsement, (iii) extend the amount of any loss, costs, attorneys' fees and expenses paid by the Company. Date of Policy or (iv) increase the Amount of Insurance. Each If requested by the Company, the Insured Claimant shall execute Commitment, endorsement or other form, or provision in the Schedules documents to evidence the transfer to the Company of these rights and to this policy that refers to a term defined in Section 1 of the Conditions remedies. The Insured Claimant shall permit the Company to sue, shall be deemed to refer to the term regardless of whether the term is compromise or settle in the name of the Insured Claimant and to use the capitalized in the Commitment, endorsement or other form, or name of the Insured Claimant in any transaction or litigation involving these Schedule. rights and remedies. If a payment on account of a claim does not fully cover Each Commitment, endorsement or other form, or provision in the Schedules the loss of the Insured Claimant, the Company shall defer the exercise of that refers to the Conditions and Stipulations shall be deemed to refer to the its right to recover until after the Insured Claimant shall have recovered its Conditions of this policy. loss. 16. SEVERABILITY. (b) The Company's right of subrogation includes the rights of the Insured to In the event any provision of this policy, in whole or in part, is held invalid indemnities, guaranties, other policies of insurance or bonds, notwithstanding any terms or conditions contained in those instruments that or unenforceable under applicable law, the policy shall be deemed not to include address subrogation rights. that provision or such part held to be invalid and all other provisions shall remain in full force and effect. 14. ARBITRATION. 17. CHOICE OF LAW; FORUM. Either the Company or the Insured may demand that the claim or controversy shall be submitted to arbitration pursuant to the Title Insurance Arbitration (a) Choice of Law. The Insured acknowledges the Company has Rules of the Arnerican Land Title Association ( "Rules "). Except as provided in underwritten the risks covered by this policy and determined the premium charged there the Rules, there shall be no joinder or consolidation with claims or for in reliance upon the law affecting interests in real controversies of other persons. Arbitrable matters may include, but are not property and applicable to the interpretation, rights, remedies or limited to, any controversy or claim between the Company and the Insured enforcement of policies of title insurance of the jurisdiction where the arising out of or relating to this policy, any service 10 connection with its Land is located. Therefore, the court or an arbitrator shall apply the law issuance or the breach of a policy provision, or to any other controversy or claim of the jurisdiction where the Land is located to determine the validity of arising out of the transaction giving rise to this policy. All arbitrable matters claims against the Title that are adverse to the Insured, and in interpreting when the Amount of Insurance is 52,000,000 or less shall be arbitrated at the and enforcing the terms of this policy. In neither case shall the court or option of either the Company or the Insured, unless the Insured is an individual arbitrator apply its conflicts of laws principles to determine the applicable person (as distinguished from an Entity). All arbitrable matters when the law. Amount of Insurance is in excess of 52,000,000 shall be arbitrated only when (b) Choice of Forum: Any litigation or other proceeding brought by the agreed to by both the Company and the Insured. Arbitration pursuant to this Insured against the Company must be filed only in a state or federal court policy and under the Rules shall be binding upon the parties. Judgment upon w ithin the United States of America or its territories having appropriate the award rendered by theArbitrator(s) may be entered in any court of competent jurisdiction. jurisdiction. 18. NOTICES, WHERE SENT. 15. LIABILITY 11 \ LIN1I'1'F.DTO THIS POLICY; POLICY ENTIRE CONTRACT. Any notice of claim and any other notice or statement in writing required to This policy together with all endorsements, if an attached to it by the be given the Company under this Policy must be given to the Company at O Company is tlg c hire policy and contract between the Insured and the National Claims Administration, P.O. Box 45023, Jacksonville. Honda 32232 - Company. In interpreting any provision of this policy, this policy' shall be .5023. p' p gt }P P Y P Y construed as a whole. (b) Any claim of loss or damage that arises out of the status of the Title or by any action asserting such claim, shall be restricted to this policy. (c) Any amendment of or endorsement to this policy must be in writing and 7239843 (2/10) Owner's Policy of Title Insurance T -1 (2/01/10) t IMPORTANT NOTICE AVISO IMPORTANTE To obtain information or make a complaint: Para obtener informacion o para someter una queja: Usted puede llamar al numero de telefono gratis Compania de You may call Chicago Title Insurance Company's toll -free Seguros de Titulo de Chicago Title para informacion o para telephone number for information or to make a complaint at: someter una queja al: 1- 800 - 442 -7067 1- 800 - 442 -7067 You may also write to Chicago Title Insurance Company at: Usted tambien puede escribir a Compania Seguros de Titulo de Chicago Title 8750 N. Central Expwy., Suite 950 Dallas, Texas 75231 8750 N. Central Expwy., Suite 950 Dallas, Texas 75231 You may contact the Texas Department of Insurance to obtain information on companies, coverages, rights or complaints at: Puede comunicarse con el Departamento de Seguros de Texas para obtener informacion acerca de companias, coberturas, 1- 800 - 252 -3439 derechos o quejas al: You may write the Texas Department of Insurance: 1- 800 - 252 -3439 P.O. Box 149104 Austin, TX 78714 -9104 Puede escribir al Departamento de Seguros de Texas: Fax: (512) 475 -1771 P.O. Box 149104 Web: http://ev wti , v.tdi.state.tx.us Austin, TX 78714 -9104 E- mail: ConsurnerProtection it tdi.state.tx.us Fax: (512) 475 -1771 Web: http: / /w ww.tdi.state.tx.us E- mail: ConsumcrProtcction !iitdi.state.tx.us PREMIUM OR CLAIM DISPUTES: DISPUTAS SOBRE PRIMAS 0 RECLAMOS: Should you have a dispute concerning your premium or about a claim you should contact the company first. If the dispute is not Si tiene una disputa concerniente a su prima o a un reclamo, debe resolved, you may contact the Texas Department of Insurance. comunicarse con el la compania) primero. Si no se resueive la disputa, puede entonces comunicarse con el departamento (TDI). ATTACH THIS NOTICE TO YOUR POLICY: UNA ESTE AVISO A SU POLIZA: This notice is for information only and does not become a part or condition of the attached document. Este aviso es solo para proposito de informacion y no se convierte en parte o condition del documento adjunto. 7239843 (2/10) Owner's Policy of Title Insurance T -1 (2/01/10) b Electronically Recorded Tarrant County Texas Official Public Records 5/31/2013 4:37 PM D213138793 `i} _ PGS 7 $40.00 ©1�� �7Gcti c..c� M a 41FkliaiWi OF DISCLAIMERIAINV:W MPI f;'''i r 'hits' Cnll'" By these presents, Masco Service Corporation does hereby disclaim and waive any right, title, or interest in: (i) the property described on Exhibits A, B, and C, whether by lease or otherwise, and any right to recover any payment, compensation, fees, or expenses from the City of Southlake Texas, in connection with the transfer to the City of Southlake, Texas title and /or easements over such property in connection with the settlement of a pending condemnation matter. MASCO SERVICES CORPORATION fr By: Brian Jeff a s-y Its: President 1200 Kimball Avenue Southlake, Texas 76092 STATE OF TEXAS ) COUNTY OF TARRANT ) Before me, the undersigned authority, on this day personally appeared Brian Jeff Massey, who, having been first duly sworn, on oath stated that he is the President of Masco Services Corporation, that he is authorized to execute the he has executed uted sucl Affidavit with full authority to - �lactf of Affidavit of Disclaimer and Waiver on Masco Services Corporation, and tha t h SIGNED AND SEALED this > b day of May, 20 0 Seal and Exit (Seal Y pc� . ,, t . 9MAYTQNotary WNBEND -J Pub�iC I' rl` * STATE OF TaAS No tary Public in an�m for the State of 1 exas I, a My , Exp,De& 1 8, 2016 DISCLAIMER AND WAIVER -- Page 1 33216.3 AFFIDAVIT OF DISCLAIMER AND WAIVER IZattikin Title Company By these presents, Masco Service Corporation does hereby disclaim and waive any right, title, or interest in: (i) the property described on Exhibits A, B, and C, whether by lease or otherwise, and any right to recover any payment, compensation, fees, or expenses from the City of Southlake Texas, in connection with the transfer to the City of Southlake, Texas title and /or easements over such property in connection with the settlement of a pending condemnation matter. MASCO SERVICES CORPORATION By: Brian Jeff a s Its: President 1200 Kimball Avenue Southlake, Texas 76092 STATE OF TEXAS ) COUNTY OF TARRANT ) Before me, the undersigned authority, on this day personally appeared Brian Jeff Massey, who, having been first duly sworn, on oath stated that he is the President of Masco Services Corporation, that he is authorized to execute the foregoing Affidavit of Disclaimer and Waiver on . -half of Masco Services Corporation, and that he has executed such Affidavit with full authority to • act. SIGNED AND SEALED this 3 day of May, 20 (Seal and Expir..- . . r POs SMAY TOWNSEND I i Notary Pubic -- * Comm Notary Public in an for the State of exas 14 et My Comm. Exp, Dec. 18,2016 This document has ' - = electronically recur - s by Rattikin Title Company Daterded 5-31--)3 Document Nobel)? DISCLAIMER AND WAIVER -- Page 1 33216.3 • • EXHIBIT "A" LEGAL DESCRIPTION PERMANENT RIGHT-OF-WAY FORTH KIMBALL AVENUE PARCEL 15 BEING 0.316 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 Jeff Massey, by the deed recorded in Volume 16881, Page 198, of the Deed Records of Tarrant County. Texas. Said 0.816 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 Massey Tract, and lying at the intersection of the centerline of North Kimball Avenue. with the centerline of E. Highland Street; THENCE N 89' 39' 25" W 331.64 feet, along the South boundary Tine of said Massey Tract, and along the centerline of E. Highland Street: THENCE N 00° 35' 06" W 34.98 feet, along the West boundary line of said Massey Tract, to a V2" iron rod marked "Brittain & Crawford' set. in the new North right -of -way line of said E. Highland Street; THENCE S 89° 38' 59" E 269,97 feat, along the new North right -of -way line of said E. Highland Street, to a 'Wx` iron rod marked 'Brittain & Crawford' set in the new West right -of -way line of said North Kimball Street; THENCE along the new West right -of -way line of said North Kimball Street, as foltowst. 1. N 45' 00' 00" E 19.71 feet, to a W iron rod marked - Britain & Crawford" set: 2. N 00' 49' 31 "W 478.08 feet, to a W iron rod marked "Britain & Crawford" set in the North boundary line of said Massey Tract, lying in the South boundary line of a tract of land conveyed to Richard Holliday and wife, Mary Ann Holliday, by the deed recorded in Volume 14325, Page 524, by the Deed Records of Tarrant County. Texas; THENCE S 89' 45 37" E 49.42 feet, along the North boundary line of said Massey Tract, and the South boundary line of said Holliday Tract. to a - PK" nail found at the Northeast corner of said Massey Tract, lying in the centerline of said North Kimball Avenue: THENCE S 00° 36' 17" E 527.10 feet, along the East boundary line of said Massey Tract, and the centerline of said North Kimball Avenue, to the POINT OF BEGINNING, containing 0.816 acre (35,543 square feet) ci land. EXHIBIT ICG` J' lrautili .r•ian- k:,{ak;n:rv+t,`. • AREA TABLE 4 RICHARD HOLUDAY AND WIFE, z' 0.816 ACRE TOTAL 1 MARY ANN HOLLIDAY (35•545 FT•) 1 VOL. 14325, PG. 524, D.R.T.C.T. PR 1 S 89°45'37"E = 1 RIGHT —OF —WAY 49.42' I "PK" NAIL FOUND 0.338 ACRE NET ��" — — (14,700 SO.FT.) — — — — TUMBLEWEED i a� 1 /r• IRS ' .25.0' TRAIL 1 2C7J, PERMANENT I ^-• 6 RIGHT -OF -WAY UNE I F 03 oLel f'J 0 Id I JEFF MASSEY g r ,,,. VOL 16881, PG. 198 1 �1 D.R.T.C.T. ' LOT 3. THE HILL ADDITION ; VOL. 386 -159, PG. 96 u P.R.T.C.T. .:` E .'11...I i Lea° tD CRIPPLE CREEK 0., <1- IM ,. ! LANE 0 0 r _ — o w o 1 h I P 1 h ,- Z ` VI c. FAMANE NI 1 c G� RIGHT-OF-WAY NE 45000�0Q " E 1 ,.c�4 N 00 °35'06 "W I` 19.71' 1 • 34.98' I S 89°38'59"E 1 /r51PS • 269.97' - «25 POINT OF SURE UNE E _ 4 t C 1ERUN ROAD -1-72.--ms-1 BEGINNING "PK" NAIL FOUND _ �_89 °39'25 ' -3J �1--.S4'= 1 IN C- ITERUNE "PK" NAIL IN I iNTEPSECTION CE II'ERUNE OF ROAD ? 1 PRLSCRIPTIVE „Ow 1 RID -R -OF -KAY UNE �J ,ra' �� 4* t7 1 SURF_YFD ON Tr1E GROUND 0CT09ER 7. 2006 �% — S 1 . {e OF I T r - I y . yPiS * io : a v ) / * .iTZD .. 9RfI7_AMt ) A1.1._ L BRI1TAIN '- .? si 9t p , O £t PROPERTY CORNER NOTE REGISTERED PR rt02�P1 SURV�' LAND SURVEYOR ALL PROPERTY CD NE S SET ARE 1/2" IRON RODS • STATE OF TENS NO. 1674 (1/2 "IRS) WRH CAP NARKED "8RIUAIN & CRAWFORD is CITY OF SOUTH LAKE 1400 MAIN STREET, SOUTHLIKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET EXHIBIT "B" E" 13RrrrAiN k CRA'iTFORD PERMANENT RIGHT —OE —WAY 4 _2 we $ Vhf "c & 0.816 ACRE OF LAND i 4-h a r ocaAr+n u r ,Pwra J LOCATED IN THE I �( 6111 ay.,. -tic lu tt,t1 {[py 112 «2�1a1 »s2c.sa FRANCIS THROOP SURVEY "=� W P.0. OR 11V.1 • Los itLl" iY.[Rl 'OM ou[114 7 ABSTRACT N o . 1511 41 ni lQ � �� SOUTHLAKE:, TARRANT COUNTY. , .avtant :.yowl,\ TEXAS ' SCALE 1 "= 100' .sa144w EXHIBIT 'A" LEGAL DESCRIPTION PERMANENT UTILITY. DRAINAGE AND WALL EASEMENT NORTH KIMBALL AVEt3UE PARCEL 15 BEING 0.111 acre cf Land located in the FRANCIS THRCOP SURVEY, ABSTRACT No. 1511, Southlake, Tarrant County. Texas, and being a portion of a tract of and conveyed to Jeff Massey, by the deed redorded in Volume 16881, Page 198, of the Deed Records of Tarrant County, Texas. Said 0.111 acre of land being more particularty described by metes and bounds as follows: BEGINNING at a W iron rod marked "Brivain & Crawford' set in the North boundary tine of said Massey Tract. and lyng N 89° 45' 3T W 49.42 feet from a "PK" nail found marking the Northeast corner of said Massey Tract. Said Point of Beginning also lying in the new West right-of-way line of North Kimball Avenue; THENCE S 00` 49' 3r E 478.08 feet. along the new West right -of -way line of said North Kimball Avenue, to a 'h° iron rod marked "Brittatn Crawford', set; THENCE S 45 00' 00 W 13.94 feet, to a point; THENCE N 00° 49' 31' W 457.98 feet, to a point in the North boundary tine of said Massey Tray.: THENCE S 89° 45'' 3r E 10.00 feet, along the North boundary line of said Massey .Tract, to the POINT OF BEGINNING. containing 0.111 acre (4,830 square feet) of Land. • 6 :C".1 , .k_„:z rr.,rys=e.,cos. EXHIBIT RICHARD HOLUDAY MD Wt. 1 MARY ANN l V.1,(DAY zI VOL 14325, PG. 524, O_R ^.C.T. 1 'NORTAV`ST COWER t POW OF BEOINN •ASS_Y TRACT 1/r iR T ROD SET w "PT(" N.10.. FODND cr / i TUMBLEWEED S 89 °45'37 "E �. TRAIL 0 46" i 10.00' N 4Y37 (-- QF , 6a. t2' ! PERMANENT UTILTY, DRAINAGE ! PRr*63CD NEW AND WALL EASEMENT fti:tTTOF -WAY { 0.111 ACRE / 4,830 SD.F7. LINE ) i JEFF MASSEY 1 O lio VOL. 16851, PG. 198 ; m N. ! to D.R.T.C.T. I SOT 3, THE HILL ADDITION a CI 33 VOL 9 - 159, PG. 96 Ti.! < P.R.T.C.T. t - Cr 1 Q CRIPPLE CREEK - o j LANE A. Z vy 1 1 ss 1 Mill-OF-WAY 1, 5 45 °00'00 - W i I 1f2„,1 \ 13 9 4 ' t i i S'+?.!Y Lye-. - , - _ C:NTER"u ROAD 1 — — - - t t "PK" S FL`tH.ID S L"JTHFASf CORNER " ?iC' NAIL ` FJt14p iN 4 1 Or LfASS_Y. TRACT CENTERL iNr or Rom 1 y ! ! Y y 'o. I .u. 1 -4-4,.)-(4' c I a 1 y . P i , ` L I i s r� ? PROP•1T CORNNM NN"TE SCAt 1" - 100 ALL ' - ROPERTY CCRtTRS 5> i WE t/2" 17 RODS (1/2" RS) S41r'M C4' 14:Rx0'TiP,F77iSN & CRAKFgRD" CITY OF SOUTHLAKE (k J 1 400 MAIN STREET, S0UTHLAKE TEXAS, 76092 NORTH KIMBALL AVENUE, Ski 114 TO EAST HIGHLAND STREET EXHIBIT "E" rr "T &C ; oaD PERMANENT � M UTILITY, QNAGE m Et .. AND WALL EASEMENT , -.f ;&.! �� 0.111 ACRE OF LAND e a, ., ° "O. X . „� ... to n .s,..m.� LOCATED IN THE ..e ... .n7+ . WKS Bart. rreur c k s 674 s f " eo von,. 'Ms Nom FRANCIS i ctROOP SURVEY .t `� "" " A25TRACT /do. 1511 c S •,KUS �s,.,9\ SOUtF?? 4 f, TARRANT COUNTY, TEXAS JULY o. 2010 v • EXHIBIT "A" LEGAL DESCRIPTION PERMANENT WALL EASEMENT NORTH KIMBALL AVENUE PARCEL 15 BEING 0.028 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 Jeff Massey, by the deed recorded in Volume 16881, Page 198, of the Deed Records of Tarrant County, Texas. Said 0.028 acre of and being more particularly described by metes and bounds as follows: BEGINNING at a point in the new West right -of -way line of North Kimball Avenue, and lying N 89° 45' 37" W 49.42 feet, and S 00 °49'31 "E 92.80 feet, from a "PK" nail found marking the Northeast comer of said Massey Tract. Said Point of Beginning also lying in the new West right -of -way line of North Kimball Avenue; THENCE S 00° 49' 31" E 300.00 feet, along the new West right -of -way line of said North Kimball Avenue, to a point; THENCE S 89° 10' 29" W 3.00 feet, to a point; THENCE N 00° 49' 31" W 275.00 feet, along a line 3 feet West of and parallel to the new West right -of -way line of said North Kimball Avenue, to a point; THENCE S 89° 10' 29" W 7.00 feet, to a point; THENCE N 00° 49' 31" W 25.00 feet, along a line 10 feet West of and parallel to the new West right -of -way line of said North Kimball Avenue, to a point; THENCE N 89° 10' 29" E 10.00 feet, to the POINT OF BEGINNING, containing 0.028 acre (1,075 square feet) of land. EXHIBIT g:201 OVeg a ls\kimba ll-ieg als',ESW 158 COP RICHARD HOLUDAY AND WIFE, MARY ANN HOLLIDAY 11 VOL. 14325, PG. 524, D.R.T.C.T. 1 b 1 1 1 NORTHWEST CORNER N MASSEY TRACT r \� 1/2" IRON ROD SET "PK" NAIL FOUND o IS ' TUMBLEWEED 4 — — — — — .w TRAIL c' rn� N 69 °45'37 "W I N 89 °10'29 "E 10.00 ° 0 49.42' ° o ° ' I I I N 00°49'31"W 25.00' > POINT IOF BEGINNING P S 89 °10'29"W 7.00'1 , J EFF MASSEY PROPOSED NEW I RIGHT -0F -WAY 1 VOL. 16881, PG. 198 1 UI1 E D.R.T.C.T. I LOT 3, THE HILL ADDITION VOL. 388 -159. PG. 96 ' b j P.R.T.C.T. 0. PERMANENT WALL 3 I o m 1 0.025 ACRE / 1075 SQ.FT. i� o 1 2 1 — — �\ 1 z w I Y4 CRIPPLLAENEREEK h p O N M 1.- et — �pp ,. 0 CZ I Y z I O I Z NEW ) (n 1 RIGHT -OF -WAY iNE 5 89 °10'29 "W 3.00' I " IRS I I I 1 /2 — — -- —_ --.— - -- - 1 /2 IRS SURVEY LINE _ _ CENTERLINE ROAD _ _ - - - - - - - ' "PK" NAIL FOUND SOUTHEAST CORNER "PK" NAIL FOUND IN 1 OF MASSEY TRACT CENTERLINE OF ROAD ,y I z I : G m 15 <'- P0 5P J I = cn —` 4 `� G � t PROPERTY CORNER NOTE SCALE 1 "= 100' ALL PROPERTY CORNERS SET ARE 1/2" IRON RODS (1/2" IRS) WITH CAP MARKED "ERITTAIN & CRAWFORD" • CITY OF SOUTHLAKE �� 1400 MAIN STREET, SOUTHLAKE, TEXAS, 76092 NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET r- EXHIBIT "B" - > • 1- & CRAWFORD . �.� F } , , m_ I_ BRn-r&irq PERMANENT WALL EASEMENT TOPOGRAP MAPPIN � . ti , 0.025 ACRE OF LAND 1 AY ft E5 1. BWAIN X (817) BY N (817) 926 -93(7 �4d 112 LOCATED IN THE � s '° s19 ,V )) ' / W °.o, bar 11574 10 .29°6 3751 FREErR1' F RANCIS THROOP SURVEY '�' O SURN J FIAT 110 1Ews 76I I9 . _ ELL,L admi"Ob,Man- w.(ad'mm ABSTRACT No. 1511 SOUTHLAKE, TARRANT COUNTY, TEXAS REVISED MA Y 1 2 1 0, 20 10, 20 13 EVISED R MAY sawaa \KIMBALL\_ES -15\ R ' II N v TULE June 3, 2013 A ialederal Express via Federal Express r. Robert Price Mr. Jeff Massey City of Southlake 619 Woods 1400 Main Street Argyle, TX 76226 Southlake, TX 76092 Re: GF# DT -09- 04451 -SLT Seller: Jeff Massey Purchaser: City of Southlake Property: 1200 N. Kimball Avenue, Southlake, Tarrant County, Texas Gentlemen: In regards to the above referenced transaction, enclosed herewith please find your closing documents for your records. Please feel free to contact Shay Townsend at stownsend@rattikintitle.com, or his assistant, Ann Eustace at aeustace @rattikintitle.com, if you have any questions or require anything further at this time. Thank you. Sincerely, Tammy Hoover for Ann Eustace Rattikin Title Company 201 Main Street, Suite 800 Fort Worth, Texas 76102 817 - 334 -1321 Enc. cc: via Federal Express Matt Molash, Shupe Ventura Lindelow & Olson Tim Sralla, Taylor Olson Adkins Sralla & Elam Downtown Office • 201 Main Street, Suite 800 • Fort worth. Texas 76102 -3105 • Phone 817.332.1171 • Fax 817.877.4237 WWW,Rattikiniitle.com GF #: 09 -04451 RAT IKI I.F. , tr •.,nn.. As., „,r,.r,, Iii:/ Au r....I PURCHASER'S STATEMENT I Purchaser: City of Southlake, a municipal corporation Seller: Brian Jeffrey Massey a/k/a Jeff Massey , , , ( - z 1; ', T n Settlement Agent Rattikin Title Company (817)332 -1171 (,»i Y OF IN: `_ OI utaiha - L h it )+ Place of Settlement: 201 Main Street, Suite 800 R A t Ti {;N TITLE C C. „', „i Fort Worth, TX 76102 -3105 �� - Settlement Date: May 29, 2013 , _ ' Property Location: 1200 N Kimball Ave ` i Southlake, TX 76092 Tarrant County, Texas 0.816, 0.111, and 0.028 acres out of Francis Troop Survey A 1511 Tr 2A03 DEBITS Purchase Price 476,000.00 Escrow Fee Rattikin Title Company 700.00 Courier Fee /Overnight Fee Rattikin Title Company 25.00 Copies/Restrictions Rattikin Title Company 48.71 Tax Report Tarrant County Real Properly Tax Service 92.74 Title Insurance Rattikin Title Company 3,008.00 Policy Guaranty Fee Rattikin Title Company 2.00 Recording Fees Rattikin Title Company 536.00 E- Recording Fee Rattikin Title Company 21.00 Gross Amount Due From Purchaser TOTAL DEBITS 480,433.45 CREDITS Deposit or Earnest money Condemnation Funds Delivered thru 326,000.00 Less Total Credits to Purchaser TOTAL CREDITS 326,000.00 BALANCE From Purchaser 154,433.45 Purchaser understands the Closing or Escrow Agent has assembled this Information representing the transaction from the best information available from other sources and cannot guarantee the accuracy thereof. The Lender involved may be furnished a copy of this Statement. Purchaser understands that tax and Insurance potations and reserves were based on figures for the preceding year or supplied by others or estimates for current year. and In the event of any change for current year, all necessary adjustments must be made between Purchaser and Seller direct. The undersigned hereby authorizes Rattikin Title Company to make expenditures and disbursements as shown and approves same for payment e undersigned also acknowledges receipt of loan funds in the amount shown above and receipt of a copy of this Statement. Note: APPROVED: City , lake. ; ,y) nicit ration BY: W-,/ all 1 e I ' The Honorabl= ? n Terre Mayor Rattikin Title Co pany (09- 04451.PFD/09- 04451/41) L,rff Uy -U445 1 RATT IK,, . LE AFFILIATED ENTITIES DISCLOSURE STATEMENT To: City of Southlake, a municipal corporation Brian Jeffrey Massey a /k/a Jeff Massey Re: 1200 N Kimball Ave Southlake, Texas 76092 Date: May 28, 2013 NOTICE Rattikin Title Company is providing you with certain closing and title insurance services in connection with the above referenced transaction. Federal law requires that providers of real estate settlement services give the parties written disclosure of its relationship with other affiliated entities which may provide other services in the same transaction. This disclosure statement shall give you notice that some or all of the owners of RATTIKIN TITLE COMPANY hold a beneficial ownership interest in the following entities, which may provide other services on your behalf in connection with your transaction. Company Type of Service Provided AmeriPoint Exchange Services Tax deferred exchange services AmeriPoint Title Group, L.L.P. Title Insurance Agent Jack Rattikin Jr., P.C. Legal documentation Jeffrey A. Rattikin, P.C. Legal documentation Mortgage Solutions, Inc. Mortgage loan servicing Rattikin & Rattikin, L.L.P. Legal documentation Rattikin Exchange Services, Inc. Tax deferred exchange services Real Estate Information Services Real estate records searches Tarrant County Real Property Tax Service, Inc. Tax searches Title Solutions, L.P. Real estate related services You are NOT required to use any of the above named providers of services as a condition to the closing of your transaction or the issuance of a title insurance policy. You are advised that there may be other providers available which offer similar services, and you are free to retain another firm to provide such services to you. By executing the acknowledgement below, you agree to utilize any services provided by the above referenced firms in connection with your transaction. If you have any questions regarding the nature of the relationship between any of the above referenced firms, please feel free to contact your Rattikin Title Company escrow officer. (09- 04451.PFD/09 -04451 /35) GF# 09 -04451 AFFILIATED ENTITIES DISCLOSURE STATEMENT (Continued) Acknowledgement I/We have read this Disclosure Statement, and understand that I /we may purchase settlement services from some or all of the above referenced firms. I/We hereby agree to utilize the services of any of the above referenced firms in connection with the closing of the above referenced transaction, and pay for the services actually rendered. BORROWER SELLER City • - • • hlake„„munici•al corporation Brian Jeffrey Massey a /k /a Jeff Massey BY:�� The Honorable John -rrell, Mayor (09 -04451.PFD/09- 04451!35) GF# 09 -04451 AFFILIATED ENTITIES DISCLOSURE STATEMENT (Continued) Acknowledgement I/We have read this Disclosure Statement, and understand that I /we may purchase settlement services from some or all of the above referenced firms. I/We hereby agree to utilize the services of any of the above referenced firms in connection with the closing of the above referenced transaction, and pay for the services actually rendered. BORROWER SELLS City of Southlake, a municipal corporation /!-/.�n� ' Brian Jeffrey M a/k /a Je ssey BY: The Honorable John Terrell, Mayor (09- 04451.PFD/09- 04451 /35)