09-013 - R TOWN OF PROSPER, TEXAS RESOLUTION NO. 09-013
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS,
HEREBY AUTHORIZING THE TOWN MANAGER OF THE TOWN OF PROSPER,
TEXAS, TO ENTER INTO AN ANNEXATION AGREEMENT WITH DAVID M.
LEINEN,Y-C NURSERIES.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF PROSPER, TEXAS:
SECTION 1: The Town Manager of the Town of Prosper, Texas, is hereby authorized to
enter into, on behalf of the Town Council of the Town of Prosper, Texas, an annexation
agreement with David M. Leinen, Y-C Nurseries.
SECTION 2: Resolved by affirmative vote of the Town Council on the 29"' day of
January, 2009.
h iswanger,
ATTEST:
D. Denton, TRMC' �%tthew
wn Secretary
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AFTER RECORDING,
RETURN TO:
STATE OF TEXAS §
§ ANNEXATION AGREEMENT
COUNTY OF COLLIN §
This Annexation Agreement("Agreement") is made and entered into as of thi&Z�day of
, 2009, ("Effective Date")by and between the Town of Prosper,Texas, ("Town")
and DaviAl. Leinen("Owner") on the terms and conditions hereinafter set forth.
WHEREAS,Owner owns approximately 12.376 acres, more or less, situated in the Collin
County School Land Survey,Abstract No.AO 147,Collin County,Texas,which is more particularly
described in Exhibit"A",attached hereto and incorporated herein for all purposes("Property');and
WHEREAS,Town and the Owner desire that the property be developed as set forth herein;
and
WHEREAS,Town in accordance with Section 43.035 of the Texas Local Government Code
desires to annex certain lands including the Property; and
WHEREAS,pursuant to Section 212.172 of the Texas Local Government Code, Town is
authorized to make a written contract with an owner of land that is located in the extraterritorial
jurisdiction of the municipality for purposes set forth in that section; and
WHEREAS,the parties desire to agree on the matters set forth in this Agreement pursuant to
Section 212.172 of the Texas Local Government Code and for the purposes set forth in that section.
NOW, THEREFORE, in consideration of the mutual benefits and premises contained
herein and for other good and valuable consideration,the receipt and sufficiency of which is hereby
acknowledged, Town and Owner agree as follows:
1. Land Subiect to Agreement. The land that is subject to this Agreement is the
Property. Owner represents that it is the sole owner of the Property.
2. Use and Development.
a. General.Except as provided for in Section 2(b)(c)and(d)of this Agreement,
the use and development of the Property before and after annexation shall
conform to the uses, density, layout,permitting requirements(including but
not limited to submittal of site plans and plats) and development standards
(including but not limited to masonry requirements, parking standards and
landscaping standards)set forth by the ordinances of Town(including but not
ANNEXATION AGREEMENT BETWEEN PROSPER AND Y-C NURSERIES,INC. PAGE 1
529457-5
limited to the Comprehensive Zoning Ordinance and the Subdivision
Regulations) as they exist or may be amended. Prior to annexation, the
Property shall be developed as if it has been designated with Agricultural(A)
zoning.
b. Existing Use. The Town recognizes that at the time of execution of this
Agreement, the Owner is operating a Major Nursery on the Property (the
"Existing Use").For purposes of this section,a Major Nursery shall mean an
establishment for the cultivation and propagation,display, storage, and sale
(retail and wholesale)of large plants,shrubs,trees, and other materials used
in indoor or outdoor plantings; and the contracting for installation and/or
maintenance of landscape materials as an accessory use,with outdoor display
and storage permitted.Although the Prosper Zoning Ordinance as adopted on
May 10, 2005 prohibits Major Nurseries from being located in an
Agricultural Zoning District, the Owner shall be permitted to continue
operating the Existing Use as long as so permitted under the applicable Texas
and local law. At the time of execution of this agreement,the parties cannot
agree as to what, if any, power the Town will have to require Owner to
modify or discontinue the Existing Use or the Planned Projects after any
future annexation. Under no circumstance shall this paragraph be
interpreted as a waiver by either party of any right, claim, defense, or legal
argument regarding the existence,nature,and extent of the Town's power to
require Owner to modify or discontinue the Existing Use or the Planned
Projects after any future annexation. Without limitation of the foregoing,
Owner expressly reserves any right, claim, defense or legal argument as to
the Existing Use and the Planned Projects under Texas Local Government
Code Section 43.002 (as the same may be from time to time amended) or
under any successor to or recodifrcation of such statute, and the Town
reserves any right, claim, defense or legal argument under its present and
future ordinances relating to legal nonconforming uses and other ordinances
that might affect the Property.
C. Planned Projects. The Town recognizes that at the time of execution of this
Agreement, the County has issued building permits to the Owner for the
expansion and improvements of the Existing Use ("Planned Projects").
Copies of these permits are attached hereto as Exhibit `B"(County-issued
Permits). Except as otherwise provided herein, the Owner does not need to
apply for additional permits from the Town to construct the Planned Projects,
but what qualifies as part of the Planned Project shall be strictly construed to
only include those improvements and expansions expressly allowed for under
the County-issued Permits. For example,if one of the permits allows for the
construction of a metal building,the Owner may not erect a masonry building
without first complying with the Town's ordinances and obtaining a permit
from the Town. Furthermore, if the Owner fails to initiate the Planned
Projects before the expiration of the County-issued Permits, then such
ANNEXATION AGREEMENT BETWEEN PROSPER AND Y-C NURSERIES,INC. PAGE 2
529457-5
Planned Projects may not be initiated without first complying with the
Town's ordinances and obtaining a permit from the Town.
d. Screening. Screening requirements in Chapter 4, Section 5 of 2.0 of the
Prosper Zoning Ordinance(Ordinance No.05-20 and Ordinance No.07-42),
as it exists or may be amended, shall not be enforced against the Property
until a permit is requested relating to the Property, at which time, all
screening requirements must be met before such permit is issued.
3. Annexation. Town will not annex the Property,unless requested to do so by Owner,
during the term of this Agreement provided that Owner complies with the terms and conditions of
this Agreement. Simultaneously with the termination of this Agreement,Town and Owner agree that
Town may,in its sole discretion,initiate annexation proceedings for the Property(the"Annexation").
EXCEPT AS OTHERWISE PROVIDED IN SECTION 2B OF THIS AGREEMENT,
OWNER HEREBY RELEASES TOWN,ITS COUNCIL MEMBERS,OFFICERS,AGENTS,
REPRESENTATIVES,AND EMPLOYEES,FROM AND AGAINST,AND WAIVES ANY
AND ALL RIGHTS TO,ANY AND ALL CLAIMS AND/OR OBJECTIONS,IT/THEY MAY
HAVE WITH REGARD TO THE ANNEXATION AS DESCRIBED IN THIS PARAGRAPH
OR PARAGRAPH 8 OF THIS AGREEMENT.
4. Water and Sewer Service. Following annexation of the Property by Town, Town
agrees to provide sanitary sewer service for the Property in the same manner and in accordance to the
same schedule as any retail development in Town if it can legally do so and in accordance with the
annexation service plan.Town agrees to provide water service for the Property in the same manner
and in accordance to the same schedule as any development in Town if it can lawfully do so.Upon
being requested to do so by Town,Owner agrees to execute and convey an easement to Town,at no
cost to Town. This easement shall be located along the Property line abutting Highway 380 and
extending 100(one hundred)feet north of said property line. Such easement shall be used as a utility
easement for the construction and/or extension of water and/or sewer facilities. The Owner shall
deliver such easement free from any liens or other encumbrances. Said easement shall be materially
in the same form as Exhibit"C",attached hereto and incorporated herein for all purposes,and shall
contain legal descriptions and diagrams of the easement.
5. Impact Fees. The Property shall be subject to impact fees adopted by Ordinance No.
06-91,as it exists or may be amended.Impact fees shall not be assessed in relation to the continued
operation of the Existing Use and/or the Planned Projects. If Ordinance No. 06-91 requires impact
fees for any development beyond the Planned Projects and/or a change of use on the Property,such
impact fees shall be required.
6. Other Development Fees. Town ordinances covering park dedication and/or payment
in lieu of dedication of land,permit fees,escrow fees and the like("Other Development Fees")are
not affected by this Agreement and shall be applied to the Property in the same manner as any other
Property located within Town's corporate boundaries. Other Development Fees shall not be assessed
in relation to the continued operation of the Existing Use and/or the Planned Projects. However,
other Development Fees, if authorized under the Town's ordinances, shall be assessed(a) for any
ANNEXATION AGREEMENT BETWEEN PROSPER AND Y-C NURSERIES, INC. PAGE 3
529457-5
change in use on the Property, or (b) any development or construction that does not qualify as a
Planned Projects.
7. Term. This Agreement is an agreement authorized by Section 212.172 of the Texas
Local Government Code. The term of this Agreement shall be five(5)years from the effective date.
The term of this Agreement shall not be affected by the fact that some or all of the Property is
annexed into the corporate limits of Town.
8. Default. If any party breaches any of the terms of this Agreement,that party shall be
in default ("Defaultin2 Partv") of this Agreement ("Event of Default"). If an Event of Default
occurs, the non-defaulting party shall give the Defaulting Party written notice of such Event of
Default, and if the Defaulting Party has not cured such Event of Default within thirty(30) days of
said written notice,this Agreement is breached. Each party is entitled to all remedies available to it
at law or in equity. In addition to the other remedies available to the parties,if the Owner breaches
or is in default on this Agreement and fails to cure such breach or default within the cure period as
stated herein,both parties agree that such breach or default shall constitute the Owner's petition for
voluntary annexation.
9. Notice. Any notice required or permitted to be delivered hereunder shall be deemed
to be delivered,whether or not actually received,when deposited in the United States Mail,postage
pre-paid,certified mail,return receipt requested,addressed to either party,as the case may be,at the
addresses contained below:
Town: Town of Prosper-
Attn: Town Manager
P.O. Box 307
Prosper, Texas 75078
With copy to: Abernathy,Roeder,Boyd&Joplin, P.C.
Attn: Rebecca Brewer
1700 Redbud Blvd., Suite 300
P.O. Box 1210
McKinney, Texas 75070-1210
Owner: Y-C Nurseries, Inc.
Attn: David M. Leinen, President
P.O. Box 59302
Dallas, Texas 75229
10. Miscellaneous.
(a) Assl2nment. This Agreement is assignable. If all or any portion of the
Property is transferred, sold or conveyed, the Owner shall give notice immediately to Town of the
name,address,phone number and contact person of the person or entity acquiring an interest in the
ANNEXATION AGREEMENT BETWEEN PROSPER AND Y-C NURSERIES,INC. PAGE 4
529457-5
Property. This Agreement shall run with the land and shall be binding on and inure to the benefit of
the Owners' successors and assigns.
(b) Compliance with Ordinances. Except as provided for in Section (2)(b),(c),
and (d), the parties agree that the Owners shall be subject to all ordinances of Town, and all
construction will be in accordance with applicable ordinances and regulations of Town,whether now
existing or in the future arising.
(c) Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to the matters contained herein and may not be modified or terminated except
upon the mutual written agreement of the parties hereto.
(d) Venue. This Agreement shall be construed in accordance with the laws of the
State of Texas and shall be performable in Collin County,Texas. Exclusive venue shall be in Collin
County, Texas.
(e) Consideration. This Agreement is executed by the parties hereto without
coercion or duress and for substantial consideration, the sufficiency of which is forever confessed.
(f) Counterparts. This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed an original for all purposes.
(g) Authority to Execute. The individuals executing this Agreement on behalf of
the respective parties below represent to each other and to others that all appropriate and necessary
action has been taken to authorize the individual who is executing this Agreement to do so for and on
behalf of the party for which his or her signature appears, that there are no other parties or entities
required to execute this Agreement in order for the same to be an authorized and binding agreement
on the party for whom the individual is signing this Agreement and that each individual affixing his
or her signature hereto is authorized to do so, and such authorization is valid and effective on the
date hereof.
(h) Binding Effect. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, executors, administrators, legal representatives,
successors and assigns.
(i) Savinv-s/Severability. 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,such
invalidity, illegality or unenforceability shall not affect any other provision thereof, and this
Agreement shall be construed as if such invalid illegal or unenforceable provision had never been
contained herein.
0) Representations. Each signatory represents this Agreement has been read by
the party for which this Agreement is executed and that such party has had an opportunity to confer
with its counsel.
ANNEXATION AGREEMENT BETWEEN PROSPER AND Y-C NURSERIES,INC. PAGE 5
529457-5
(k) Sovereign Immunity. The Town hereby waives its sovereign immunity with
regards to any breach by the Town of this Agreement,but shall maintain its sovereign immunity in
all other regards.
(1) Miscellaneous Drafting Provisions. This Agreement shall be deemed drafted
equally by all parties hereto. The language of all parts of this Agreement shall be construed as a
whole according to its fair meaning and any presumption or principle that the language herein is to
be construed against any party shall not apply. Headings in this Agreement are for the convenience
of the parties and are not intended to be used in construing this document
(m) Incorporation of Recitals. The Recitals above are incorporated herein as if
repeated verbatim.
(n) No Chanter 245 Permit. This Agreement,and any requirement contained in
this Agreement,shall not constitute a"permit"as defined in Chapter 245,Texas Local Government
Code. THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused this
Agreement to be effective on the latest date as reflected by the signatures below.
TOWN OF PROSP ,T AS'
r
By:
Mike Land,TowA.Manager
ATTES
1V�atthew Denton, Town Secretary
OWNER:
Y-C NURSERIES, INC.
By: Jr-.
David M. Leinen, President
ANNEXATION AGREEMENT BETWEEN PROSPER AND Y-C NURSERIES, INC. PAGE 6
529457-5
STATE OF TEXAS §
COUNTY OF COLLIN §
BEFORE ME, the undersigned authority, on this day personally appeared Mike Land,
Town Manager of Town of Prosper, Texas, being the person whose names are subscribed to the
foregoing instrument;he acknowledged to me he is the duly authorized representative for Town of
Prosper, Texas, and he executed said instrument for the purposes and consideration therein
expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this = day of
k�sic�v C IV 1 2009.
�.•. . Notary Public in and for the State of Texas
Y Div —
�,..� 7 �iELa A. ANS My Commission Expires:
h '^ t r Ut T, St:. ,. Expires-
'T _ . 2
k",v C-mmissicn Expires
.:_..._ � _ ,.v3+et+eo.-:.:xcm.,��:ter•F��.-,�wr,,r.
STATE OF TEXAS §
COUNTY OF COLLIN §
BEFORE ME,the undersigned authority,on this day personally appeared David M.Leinen,
President, known to me to be one of the persons whose names are subscribed to the foregoing
instrument;he acknowledged to me he is the duly authorized representative for Y-C Nurseries,Inc.,
and he executed said instrument for the purposes and consideration therein expressed.
�U
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 1 day of
2009.
Notary Public and for the State of Texas
My Commission Expires:
VIRGINIA DESILVA
Notary Public
STATE OF TEXAS
Corr+mission Expires 07/29/11
ANNEXATION AGREEMENT BETWEEN PROSPER AND Y-C NURSERIES,INC. PAGE 7
529457-5
Exhibit"A"
Description and Depiction of Property
ANNEXATION AGREEMENT BETWEEN PROSPER AND Y-C NURSERIES, INC.
529457-5
Being a tract of land situated in the Collin County School Land Survey, Abstract No_ 147,
Collin County, 'Texas, and being 12.376 acres, out of a 25 acre tract which is described in
a Deed recorded in Clerk's File No. 99-84538, Collin County Land Records, and out of a
8.655 acre tract which is described in a Deed recorded in Clerk's File No. 99-0104398,
Collin County Land Records, and being more particularly described as follows:
BEGINNING at a point in the North line of U.S. Highway No. 380, said point being the
southeast corner of a 5.490 adre tract conveyed to Five Sac Self Storage Corp. as recorded
in Volume 4762, Page 1011 of the peed Records of Collin County, Texas;
THENCE North 00 deg. 43 min. 47 sec. East along the East line of said 5.490 acre tract,
845.10 feet to a 5/8" iron rod found for Corner;
THENCE North 69 deg. 29 min. 36 sec. West along the North line of said 5.490 acre tract,
283.02 feet to a 5/8" iron rod found fox' corner;
THENCE North 00 deg. 13 min. 45 sec.. East, 734.12 feet to an iron pipe found for corner;
THENCE South 89 deg. 43 min. 07 sec, east, 238.68 feet to a 1/2" iron rod found for
corner;
THENCE South 89 deg. 42 min. 32 sec. East, 407.95 feet to a 1/2: iron rod with red Fn cap
set for corner;
THENCE South 00 deg. 44 min. 34 sec. West, 737.89 feet to a 1/2: iron rod with red FD cap
set for corner;
THENCE North'89 dig. 15 min. 26 sec. West, 288.23 feet to a 1/2" iron rod with red FD cap
set for corner;
THENCE South 00 deg. 44 min. 34 sec. West, 845.00 feet to a 1/2" iron rod with red FD cap
set for corner in the North line of U-S. Highway No. 380;
THENCE Worth 89 deg. 29 min. 33 sec. West along said North line, 75.00 fee tot a 5/8N iron
rod found for coriaer and Containing 12.376 acres (539,103 square feet) of land.
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Exhibit"B"
County4ssued Permits
ANNEXATION AGREEMENT BETWEEN PROSPER AND Y-C NURSERIES,INC.
529457-5
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Y-C Nurseries Inc.
1532 Hwy 380 West
Per mft#08-1406
Ds"L 6 m 1 972-241-0745
Bldg.Info:
12,000 sq.ft.
#of bathrooms:4
#of employees:6 x 4=24 GPD
Ham of operation:7a—5p Monday—Friday
Occupancy Ioad:7 x 4=28 GPD
OSSF Info:
Aerobic
T 500
A500
P 500
2@20'
2-20'0 200=1395 sq.ft.
1-13.5'@ 180— 286 sq.ft
-734 sq.R of overlap area=947 total sq.ft.of application area.
*OSSF is designed for a max GPD of 40*
Permit conditions—This posit is approved for a waxehouse(offioe type of usage
ONLY with the following conditions. Any change in usage is a violation of permit
conditions. Notifjr Collin County Development Services prior to chop in usage
(failure to eon ly with the conditions will result in permit revocation and/or fines):
• Hours of operation:Monday—Friday 7a-•Sp
• Business is closed Saturday and Sunday.
• Only 6 full time employees on the premises at ANY time during business hours
ONLY.
• Approved maidmm GPD of 28 and can NOT be exceeded
• Business is not open to the public.
• OSSF is approved for connection to sesiraoms,ONLY(hand-washing sinks,
toilets,etc).No water from floor drains,equipment wash-down,etc will be
allowed its this system.
(�IgipN 09106!111tl�N1B i
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1166Mit PBI�-SElgl�t�l'�If
Y-C Nurseries Inc.
1532 Hwy 380 west
Permit#08.1406
Dave I.Rinen 1972-2414748
Hidg.Iafa:
12,000 sq.R..
#of badum ms:4
#of employees:6 x 4=24 M
Hours of operation:7a—5p Monday--Friday
Occupancy load:7 x 4=28 GPD
OSSF Lcfe:
Aerobic
T 500
A 500
P 500
2@20'
2-20'@ 200=1395 sq.ft-
1-13-51 @ 180= 286 sq.&
-734 sq.&of overlap area=947 total sq.ft.of application area.
*OSSF is designed for a ntax GPD of 40*
Permit conditions—This permit is approved for a warehouse/office type of usage
ONLY with the following conditions. Any change in usage is a violation of permit
conditions. Notify Collin County Development Services prior to clime in usage
(fbilme to comply with the conditions will result in permit revocation and/or fines):
• Hours of operation:Monday—Friday 7a—Sp
• Business is closed Saturday and Sunday.
• Only 6 full time employees on the premises at ANY time during business hours
ONLY.
• Approved maximum GFD of 28 and can NOT be exceeded.
• Business is not open to the public.
• OSSF is approved for connection to restrooms,ONLY(hand-washing sinks,
toilets,ebc).No water from floor drains,equipment wash-down,etc will be
allowed in this system.
Aug 24 08 40:532 Y C PROSPER X72446 42840 p,1
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rareaz,ec. road and tllwe=st:Rnc
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SFS VISSF MiT iAL NSPEC"TiVIN
m 2 lqgi-Mi 41 in-R F--Uni rl-
NC 14" T.;%Isr-S!7 ZZ, FOR
Exhibit"C"
Utility Easement Form
with Temporary Construction Easement
ANNEXATION AGREEMENT BETWEEN PROSPER AND Y-C NURSERIES,INC.
529457-5
"NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY
REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT
BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY
NUMBER OR YOUR DRIVERS' LICENSE NUMBER."
AFTER RECORDING, RETURN TO:
Town Manager
Town of Prosper
P. O. Box 307
Prosper, Texas 75078
UNDERGROUND WATER UTILITYEASEMENT
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF §
That ("Grantor"),whether one or more,for and in consideration of
the sum of TEN DOLLARS ($10.00) cash in hand to Grantor paid by the TOWN OF PROSPER,
TEXAS,a Texas municipal corporation,("Grantee")the receipt and sufficiency of which are hereby
acknowledged,does hereby GRANT, SELL AND CONVEY unto Grantee the easement and right to
construct, reconstruct, operate, repair, re-build, replace, relocate, alter, remove and perpetually
maintain underground water utility facilities and above-ground valve boxes,fire hydrants,and/or air
release valves related to the underground water utility facilities ("Facilities"), together with all
incidental improvements, and all necessary laterals in,upon and across certain real property owned
by Grantor and located in the Town of Prosper, or its extraterritorial jurisdiction,
County, Texas, as more particularly depicted on and described in Exhibit"A", attached hereto and
incorporated herein for all purposes ("Easement Provertv"). As part of the grant hereby made, it is
agreed between the parties hereto that any stone,earth,gravel or caliche which may be excavated in
the opening, construction or maintenance of said easement may be removed from said premises by
Grantee.
UNDERGOUND WATER UTILITY EASEMENT—Page 1 of 8
539049.0
TO HAVE AND TO HOLD the same perpetually unto the Grantee, its successors and
assigns,together with the right and privilege at all times to enter the Easement Property,or any part
thereof,for the purpose of constructing,reconstructing,operating,repairing,re-building,replacing,
relocating, altering, removing and perpetually maintaining the Facilities, and all incidental
improvements and for making connections therewith.
Grantor does hereby bind itself and its successors to WARRANT AND FOREVER DEFEND
all and singular the Easement Property unto Grantee,its successors and assigns,against every person
whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under
Grantor, but not otherwise.
Grantee, its successors and assigns, shall have the right to construct, reconstruct and
perpetually maintain additional Facilities at all times in the future within the Easement Property. If
Grantee is unable to access the Easement Property due to physical barriers or conditions, then the
Grantee,its successors and assigns,shall have,and are hereby granted,the right of ingress and egress
over that portion of the Grantor's adjacent property within fifteen feet(15')of the Easement Property
as is reasonably necessary to and for the limited purpose of accessing the Easement Property herein
granted ("Ingress/Egress Easement").
Grantee will at all times after doing any work in connection with the construction,operation
or repair of the Facilities,restore the surface of the Ingress/Egress Easement and Easement Property
as close to the condition in which it was found before such work was undertaken as is reasonably
practicable,except for trees, shrubs and structures within the Easement Property that were removed
as a result of such work.
There are no liens,attachments, or other encumbrances which will affect the title or right of
the Grantor to convey this easement to the Grantee for the purposes as described herein. If such
UNDERGOUND WATER UTILITY EASEMENT—Page 2 of 8
539049.v1
condition does exist, a signature with acknowledgment shall be included and made a part of this
document conveying the rights and privileges contained herein.
The easement rights and privileges granted herein are non-exclusive,but Grantor covenants
that Grantor will not convey any other easement or conflicting rights within the area covered by this
grant which unreasonably interfere with Grantee's rights granted herein and provided all such other
grants comply with all applicable local, state and federal laws,ordinances,rules,regulations and/or
requirements, as they exist,may be amended or in the future arising. Grantee will not unreasonably
deny a request to encroach on the Easement Property.
Further,Grantor shall not place any improvement or take any action,permanent or temporary,
which may cause damage or jeopardize the integrity of the Facilities and/or which will affect and/or
interfere, in any way, the rights granted herein. Grantee, may, due to the necessity of repair and
maintenance of the Facilities, remove and keep removed any and all improvements to the extent
necessary to make repairs. Grantee will not be responsible for loss of improvements due to failure or
maintenance of the Facilities.
This instrument shall be binding upon, and inure to the benefit of,Grantee and Grantor, and
their respective successors or assigns.
This instrument may be executed in a number of identical counterparts, each of which shall
be deemed an original for all purposes.
[SIGNATURES TO FOLLOW.]
UNDERGOUND WATER UTILITY EASEMENT—Page 3 of 8
539049.v1
EXECUTED on the dates appearing in the acknowledgements below, however, to be
effective on this day of 12009.
GRANTOR:
AGREED AND ACCEPTED:
TOWN OF PROSPER, TEXAS
By:
Mike Land, Town Manager
UNDERGOUND WATER UTILITY EASEMENT—Page 4 of 8
539049A
THE STATE OF TEXAS §
COUNTY OF §
BEFORE ME, the undersigned authority, on this day personally appeared
' known to me to be one of the persons whose names are subscribed to the
foregoing instrument and he executed said instrument for the purposes and consideration therein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ,
2009.
Notary Public in and for the State of Texas
My Commission Expires:
THE STATE OF TEXAS §
COUNTY OF §
BEFORE ME, the undersigned authority, on this day personally appeared
' known to me to be one of the persons whose names are subscribed to the
foregoing instrument and she executed said instrument for the purposes and consideration therein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ,
2009.
Notary Public in and for the State of Texas
My Commission Expires:
UNDERGOUND WATER UTILITY EASEMENT—Page 5 of 8
539049A
THE STATE OF TEXAS §
COUNTY OF COLLIN §
BEFORE ME,the undersigned authority,on this day personally appeared Mike Land,Town
Manager for and on behalf of the TOWN OF PROSPER, TEXAS, a Texas home-rule municipal
corporation;he acknowledged to me he is the duly authorized representative of the Town of Prosper,
Texas and that he executed said instrument for the purposes and consideration therein expressed and
in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
, 2009.
Notary Public in and for the State of Texas
My Commission Expires:
UNDERGOUND WATER UTILITY EASEMENT—Page 6 of 8
539049.v1
JOINDER OF LIENHOLDER
The undersigned, being the holder of the liens against a portion of the Easement Property
evidenced by:
and subject to all of the terms and conditions and stipulations contained therein, including but not
limited to, any future indebtedness also secured by these liens, hereby consents to the execution of
the foregoing Utility Easement and agrees that in the event of a foreclosure of the Easement Property
or any portion thereof and/or the underlying property or any portion thereof(or deed in lieu thereof),
the Utility Easement will remain in full force and effect and shall not be extinguished by such
foreclosure (or deed in lieu thereof).
a
By:
Printed Name:
Its:
THE STATE OF TEXAS §
COUNTY OF §
BEFORE ME, the undersigned authority, on this day personally appeared
, known to me to be one of the persons whose names are subscribed to the
foregoing instrument; he/she acknowledged to me he/she is the and duly
authorized representative of ,a ,and he/she executed
said instrument for the purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ,
2009.
Notary Public in and for the State of Texas
My Commission Expires:
UNDERGOUND WATER UTILITY EASEMENT—Page 7 of 8
539049A
EXHIBIT "A "
Description and Depiction of Easement Property
( pages attached)
UNDERGOUND WATER UTILITY EASEMENT—Page 8 of 8
539049.vl
"NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY
REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT
BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY
NUMBER OR YOUR DRIVERS' LICENSE NUMBER."
AFTER RECORDING, RETURN TO:
Town Manager
Town of Prosper
P. O. Box 307
Prosper, Texas 75078
TEMPORARY CONSTRUCTION EASEMENT
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF §
That ("Grantor"),whether one or more,for and in consideration
of the sum of TEN DOLLARS($10.00)cash in hand to Grantor paid by the TOWN OFPROSPER,
TEXAS, a Texas municipal corporation, ("Grantee")the receipt and sufficiency of which is hereby
acknowledged,does hereby GRANT, SELL AND CONVEY unto Grantee a temporary construction
easement for the purposes of constructing underground water utility facilities and above-ground
valve boxes, fire hydrants, and/or or air release valves related to the underground water utility
facilities("Facilities"),together with all incidental improvements,and all necessary laterals in,upon
and across certain real property owned by Grantor and located in the Town of Prosper, or its
extraterritorial jurisdiction, County, Texas, as more particularly depicted on and
described in Exhibit "A", attached hereto and incorporated herein for all purposes ("Easement
Propertv"). As part of the grant hereby made, it is agreed between the parties hereto that any stone,
earth,gravel or caliche which may be excavated in the opening,construction or maintenance of said
easement may be removed from said premises by Grantee.
TEMPORARY CONSTRUCTION EASEMENT —Page 1 of 7
539186-v1
Grantor does hereby bind itself and its successors to WARRANT AND FOREVER DEFEND
all and singular the Easement Property unto Grantee,its successors and assigns,against every person
whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under
Grantor, but not otherwise.
Grantee will at all times after doing any work in connection with the construction,operation
or repair of the Facilities, restore the surface of the Easement Property as close to the condition in
which it was found before such work was undertaken as is reasonably practicable, except for trees,
shrubs and structures within the Easement Property that were removed as a result of such work.
This Temporary Construction Easement will automatically terminate upon the expiration of
two(2)years after the date the Town of Prosper finally accepts the public improvements constructed
under this Temporary Construction Easement.
There are no liens, attachments,or other encumbrances which will affect the title or right of
the Grantor to convey this easement to the Grantee for the purposes as described herein. If such
condition does exist, a signature with acknowledgment shall be included and made a part of this
document conveying the rights and privileges contained herein.
The easement rights and privileges granted herein are non-exclusive,but Grantor covenants
that Grantor will not convey any other easement or conflicting rights within the area covered by this
grant which unreasonably interfere with Grantee's rights granted herein and provided all such other
grants comply with all applicable local, state and federal laws,ordinances,rules,regulations and/or
requirements, as they exist,may be amended or in the future arising. Grantee will not unreasonably
deny a request to encroach on the Easement Property.
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This instrument shall be binding upon, and inure to the benefit of,Grantee and Grantor, and
their respective successors or assigns.
This instrument may be executed in a number of identical counterparts, each of which shall
be deemed an original for all purposes.
EXECUTED on the dates appearing in the acknowledgements below, however, to be
effective on this day of 2009.
GRANTOR:
AGREED AND ACCEPTED:
TOWN OF PROSPER, TEXAS
By:
Mike Land, Town Manager
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THE STATE OF TEXAS §
COUNTY OF §
BEFORE ME, the undersigned authority, on this day personally appeared
' known to me to be one of the persons whose names are subscribed to the
foregoing instrument and he executed said instrument for the purposes and consideration therein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ,
2009.
Notary Public in and for the State of Texas
My Commission Expires:
THE STATE OF TEXAS §
COUNTY OF §
BEFORE ME, the undersigned authority, on this day personally appeared
' known to me to be one of the persons whose names are subscribed to the
foregoing instrument and she executed said instrument for the purposes and consideration therein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ,
2009.
Notary Public in and for the State of Texas
My Commission Expires:
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THE STATE OF TEXAS §
COUNTY OF COLLIN §
BEFORE ME,the undersigned authority,on this day personally appeared Mike Land,Town
Manager for and on behalf of the TOWN OF PROSPER, TEXAS, a Texas home-rule municipal
corporation;he acknowledged to me he is the duly authorized representative of the Town of Prosper,
Texas and that he executed said instrument for the purposes and consideration therein expressed and
in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
12009.
Notary Public in and for the State of Texas
My Commission Expires:
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JOINDER OF LIENHOLDER
The undersigned, being the holder of the liens against a portion of the Easement Property
evidenced by:
and subject to all of the terms and conditions and stipulations contained therein, including but not
limited to, any future indebtedness also secured by these liens, hereby consents to the execution of
the foregoing Temporary Construction Easement and agrees that in the event of a foreclosure of the
Easement Property or any portion thereof and/or the underlying property or any portion thereof(or
deed in lieu thereof), the Temporary Construction Easement will remain in full force and effect and
shall not be extinguished by such foreclosure(or deed in lieu thereof).
a
By:
Printed Name:
Its:
THE STATE OF TEXAS §
COUNTY OF §
BEFORE ME, the undersigned authority, on this day personally appeared
, known to me to be one of the persons whose names are subscribed to the
foregoing instrument; he/she acknowledged to me he/she is the and duly
authorized representative of ,a ,and he/she executed
said instrument for the purposes and consideration therein expressed and in the capacity therein stated.
2009. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ,
Notary Public in and for the State of Texas
My Commission Expires:
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EWIBIT "A "
Description and Depiction of Easement Property
( pages attached)
TEMPORARY CONSTRUCTION EASEMENT —Page 7 of 7
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