Loading...
HomeMy WebLinkAboutResolution - 2006-R0099 - Compromise Settlement Agreement - Ashley And Fagan V. COL - 02_24_2006Resolution No. 2006-R0099 February 24, 2006 Item No. 6.23 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Compromise Settlement Agreement for Ashley and Fagan, et al v. City of Lubbock, in the 391n District Court of Kent County, Texas, Cause No. 1501, and related documents. Said Compromise Settlement Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 24th day of February , 2006. MARC M OUGAL, MAYOR ATTEST: Re ecca Garza, City Secretary APPROVED AS TO CONTENT: Lee Ann Dumbauld, City Manager APPROVE TO FORM: c Anita Burgess, City Attorney ml/ccdocs/Ashley&Fagan-Compromise Settlement Agree.res January 30, 2006 Resolution No. 2006-R0099 CAUSE NO, 1581 ASHLEY AND FAGAN INVESTMENTS § COMPANY, INC., LYNDELL J. ASHLEY § AND LAWAYNE FAGAN, OAK § CANYON ESTATES HOMEOWNERS § ASSOCIATION, INC., AND RIO § BRAZOS ESTATE HOMEOWNERS § ASSOCIATION § Plaintiffs, V. § CITY OF LUBBOCK, § Defendant. § IN THE 39TH DISTRICT COURT IN AND FOR KENT COUNTY, TEXAS COMPROMISE SETTLEMENT AGREEMENT This Agreement is entered into by and between, ASHLEY AND FAGAN INVESTMENTS COMPANY, INC. ("Company"), LYNDELL J. ASHLEY ("Ashley"), LEWAYNE FAGAN ("Fagan"), OAK CANYON ESTATES HOMEOWNERS ASSOCIATION, INC. ("Canyon"), and RIO BRAZOS ESTATE HOMEOWNERS ASSOCIATION ("Rio Brazos") as Plaintiffs (collectively referred to herein as "Plaintiffs"), and THE CITY OF LUBBOCK, TEXAS as Defendant ("City"). WITNES SETH: WHEREAS, Lake Alan Henry ("LAH") was constructed by the City as a municipal water supply reservoir by permit from the Texas Water Commission, now known as the Texas Commission on Environmental Quality; Ashley/Fagan — Page 1 374787_1 WHEREAS, in order to build the reservoir the City sought and acquired land and other rights pursuant to a written agreement between the City and various landowners including but not limited to Plaintiffs' predecessor in interest, Mary Ellen Headstream and J.W. Headstream (Plaintiffs' Predecessor) conveyed certain lands to the City by Warranty Deed(s), dated August 24, 1989 and recorded in Volume 183, Page 787, Deed Records, Garza County, Texas, and also recorded in Volume Page , Deed Records, Kent County, Texas. The Warranty Deed was executed and delivered pursuant to a Contract of Sale, dated April 14, 1989, by and between Plaintiffs Predecessor and the City, and recorded in Volume 194, Page 103, Deed Records, Garza County, Texas, and in Volume , Page , Deed Records, Kent County, Texas. The Contract of Sale was entered into pursuant to the Memorandum of Agreement ("MOA"), dated on or about April 3, 1986, by and between Plaintiffs Predecessor, et al. and the City, incorporated by reference in the Contract of Sale and Warranty Deed. WHEREAS, the MOA settled three lawsuits between the City and various "Landowners" (as that term is defined in the MOA), wherein among other things, the Landowners abutting the proposed reservoir granted to the City two easements on their property. A flood easement (referred to in the MOA as the "Restrictive Easement and Flood Easement") encumbering certain lands from elevation 2220 feet above mean sea level to elevation 2245 feet mean sea level elevation, and a restrictive easement (referred to in the MOA as the "Restrictive Easement") encumbering certain lands between elevation 2245 feet above mean sea level and 300 feet horizontal distance from elevation 2220 feet above mean sea level (referred to herein as the "Flood Easement" and "Restrictive Easement", respectively or collectively as the "Easements"); Ashley/Fagan — Page 2 374787_1 The Flood Easements and Restrictive Easements granted rights to the City and likewise allowed Landowners certain uses of their lands within the easements not inconsistent with the City's use; docks; WHEREAS, the MOA granted to each Landowner the right to construct two boat ramps; WHEREAS, the MOA strictly prohibited the construction of structures, facilities and boat WHEREAS, the MOA stated that the parties desired to limit public access to and from Landowners' property granted to the proposed reservoir; WHEREAS, by Warranty Deed dated March 24, 2000 recorded in Volume 2, Page 292, Deed Records, Kent County, Texas, and dated April 12, 2000, Volume 249, Page 1016, Deed Records Garza County, Plaintiff(s) acquired lands and rights under the MOA from Plaintiffs' Predecessor, John E. Reed, Jr. and wife, Stacy Reed and by Warranty Deed from Carol Sue Reed dated March 23, 2000, Volume 2, Page 289 Deed Records Kent County and Volume 249, Page 1013 Deed Records Garza County upon which land Company and Ashley & Fagan have created and platted the development known as Rio Brazos Estates; WHEREAS, by Warranty Deed dated March 11, 2004 recorded in Volume 19, Page 244, Deed Records, Kent County, Texas, and dated March 11, 2004, Volume 269, Page 266 Deed Records, Garza County, Texas, Plaintiff(s) acquired lands and rights under the MOA from Plaintiffs' Predecessor Lesa Ward and Leslie Ward Murphy upon which properties Company, Ashley & Fagan have created and platted the development known as Oak Canyon; WHEREAS, Company, Ashley and Fagan have created and platted developments known Ashley/Fagan — Page 3 374787_1 as Rio Brazos Estate and Oak Canyon from said lands and intend to create additional developments on lands abutting Lake Alan Henry; WHEREAS, Company, Ashley and Fagan have acquired and hold options to develop additional developments out Section 80, 81, 82, 94, 95 and 107 Block 5, H&GN RR Co. Survey, Garza and Kent Counties, Texas, which also have waterfront access to Lake Alen Henry (hereinafter, the "Option Property"). WHEREAS, disputes have arisen between Plaintiffs and the City, regarding the interpretation of the MOA, including but not limited to the restrictions and rights of the parties in regards to the easements which has resulted in the claims and defenses asserted in this suit; peace; WHEREAS, the parties desire to compromise their claims and avoid litigation and buy NOW, THEREFORE KNOW ALL MEN BY THESE PRESENTS: That for and consideration of the mutual promises and covenants herein, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Except as specifically altered herein, the terms of the MOA dated April 3, 1986, shall remain in full force and effect. To the extent the MOA conflicts with any term or condition of this Addendum or Agreement, this Agreement shall control. 2. This settlement and the terms hereof are subject to and conditioned upon the City and Plaintiffs agreeing to be bound by the terms herein as evidenced by their signatures to this Agreement. 3. The terms of this Agreement shall be submitted to the Court and either attached or Ashley/Fagan — Page 4 374787_1 incorporated into a Declaratory Judgment which will be filed of record in this cause. This Agreement shall likewise be incorporated into warranty deeds, filed of record in the Real Estate Records of Kent and Graza Counties, Texas and shall be incorporated in the Homeowner's Association By -Laws of Canyon and Rio Brazos as well as any further developments on the Option Property. Plaintiffs and the City agree that all future lots sold in any developments or lands abutting Lake Alan Henry currently owned by Plaintiffs or purchased in the future by Plaintiffs ("future developments") shall contain deed restrictions consistent with the terms and conditions of this Agreement that will restrict future uses of that property. In the event that any current or future developments or subdivisions, including but not limited to Oak Canyon and Rio Brazos Estates are dissolved, the terms and conditions of this Agreement shall continue to bind such lands abutting Lake Alan Henry. It is the intention of the City and Plaintiffs that these covenants shall run with the land regardless of the status or ownership of Plaintiffs' lands or any lands abutting Lake Alan Henry. 4. The City will allow Plaintiffs to construct one boat dock for the Rio Brazos Estates Subdivision and one boat dock for the Oak Canyon Subdivision. The City will grant Company the right to build one additional ramp and one additional dock per future development, not to exceed five future developments. The future development must contain over 100 platted lots. The Plaintiffs, in consideration for the docks and ramps provided in this paragraph, waive any an all rights, if any, Ashley/Fagan — Page 5 374787_1 to boat ramps or docks as provided for in the MOA. The dock(s) will be constructed in accordance with the City's specifications and at the sole cost and expense of Plaintiffs. All boat docks constructed will be floated docks. No boat dock may be placed in a position which will impede general navigation. Following installation of any boat dock, usage of such dock shall be subject to and governed by the provisions of this paragraph. No security interest, pledge or mortgage granted by any of the Plaintiffs or any successor in interest shall take priority over the rights granted herein to the City, including, without limitation, the right of the City to remove or lock out usage of such dock. The rights and responsibilities listed below shall govern boat docks constructed for Rio Brazos Oak Canyon and any docks constructed for future developments by a Company, Ashley or Fagan. A. Rights and Responsibilities of Plaintiffs Regarding the Boat Dock(s): a. Fuel sales and fuel storage are prohibited at dock(s); b. No gas containers will be allowed at the dock(s) with the capacity of more than 10 gallons of gasoline; C. No diving or swimming shall be allowed from or around the dock(s); d. Plaintiffs must submit all signage on the dock including safety signs to the City for approval; e. The City is allowed to install lockable gates on each dock for Ashley/Fagan — Page 6 374787_1 inspection purposes and for violations of the terms of this Agreement; f. Payment to the City of an Annual License Fee per each dock as hereafter described. The amount of the Annual License Fee shall be determined as follows: Upon completion of construction of a dock permitted in Paragraph 4, Rio Brazos, Canyon or Plaintiffs shall notify the City of its completion and shall, at the same time, report to the City the number of lots which the development containing the dock has, to that date, been sold. Sixty (60) days after such notification, the Company or the development's Homeowners Associations shall be pay the City an Annual License Fee of $150 times the number of lots reported as sold. On an annual basis thereafter, the development, its owners or its homeowners associations shall pay the Annual License Fee calculated in the same manner ($150 times the total number of lots of the development sold), (The obligation described herein shall not limit the right of Rio Brazos, Canyon or Plaintiffs to set, from time to time, any dock usage fee or other related assessment and to collect the same from Homeowners Association members as its governing body may determine); g. Provide liability insurance with the City as an additional insured in Ashley/Fagan — Page 7 374787_1 an amount approved by the City, but not less than the City's liability under Texas Torts Claims Act; h. Provide, at their sole cost and expense, electrical service to elevation 2220 mean sea level and to the dock(s); i. Plaintiffs shall, at their sole cost and expense, make all repairs on the dock(s). j. Neither ownership of the docks by the City, nor any other term in this Agreement shall convert the dock into a facility available for usage by the general public. Plaintiffs and future developments may restrict usage of the dock(s) to Homeowners Association members and may provide, by its rules and regulations, other limitations on usage of the dock(s). B. Rights and Responsibilities of the City Regarding Boat Dock(s): a. Right to inspect the boat dock(s) and anchor system; b. Right to enter boat dock(s) and City's easements without notice for police and fire emergency, enforcement of this Agreement, or LAH ordinances, rules and regulations; C. Review and approve or deny signage proposed by Plaintiffs; d. Enforce the City's easements and remove or lock out dock as herein provided for violations. In the event that the City intends to remove or lock out usage of any boat docks the City will provide Ashley/Fagan — Page 8 374787_1 reasonable notice to the Homeowner's Association to whose use the dock is dedicated, unless an emergency situation requires otherwise. 5. Other Rights and Responsibilities of Plaintiffs: A. The Oak Canyon, Rio Brazos or future developments' Homeowner's Association and By -Laws will be amended to require the Association to monitor and prosecute lot owners on violations of this Agreement; B. If applicable, Plaintiffs shall be responsible for ADA accessibility and compliance and indemnify the City for any and all ADA claims arising out of use of the dock(s) by licensees of Rio Brazos, Canyon or future developments; C. Plaintiffs shall comply with all Lake Alan Henry ordinances, rules and regulations; D. Except for the boat dock(s) constructed pursuant to the terms of paragraph 4 above, Plaintiffs shall, prohibit any lot owner in any development from the construction of any boat dock or ramp. 6. Paragraph IV of the MOA contains the following provisions, hereinafter referred to as the Water Extraction License: "IV. In the event that City, in its discretion, determines to construct the Justiceburg Reservoir as contemplated by this Agreement and does Ashley/Fagan — Page 9 374787_1 construct such facility, then and only then the City will grant to the Landowners Reed, Ward, and Huddleston, one tap each to allow use of the raw water in the pipeline(s) for such Landowners' domestic and normal ranching livestock consumption on Landowners' property. No warranty will be given as to the quality or the availability of water from the pipeline(s). The Landowners will provide a recording meter at each tap to measure the volume of water taken which shall be limited to twenty (20) acre feet per year per tap. The City shall have reasonable access to each tap and meter for the purpose of calibrating the same from time to time." In order to resolve a dispute regarding the rights of Plaintiffs, if any, created by the Water Extraction License, it is agreed as follows: A. The City currently owns a water extraction point situated near the northwest end of Montford Dam. Company shall be entitled to install a tap point at such extraction site. B. Upon approval of this Agreement, the City agrees to execute a water line easement in a form substantially similar to Exhibit "A" attached hereto. C. Company shall be entitled to construct, in accordance with any legally required standards, a six (6) inch pipe line in such easement. D. A meter shall be installed at Company's extraction point at Company's expense. E. Upon completion of Company's extraction point and the pipeline, Ashley/Fagan —Page 10 374787_1 Company shall be entitled to draw up to 20 acre feet of water per year for delivery through the pipeline at no cost to Company. Thereafter, Company may elect to have delivered up to a maximum of an additional 20 acre feet per year and Company shall pay the City at the rate provided in Article I, § 108(e), S.B. 1941, 2003 Leg. 78" Sess. (Tex. 2003) (currently $1.81 per 1000 gallons). Any amount payable by this provision shall be payable to the City monthly. F. As of the date upon which this Agreement and the easement provided in paragraph 6(B) above have been executed, Plaintiffs shall thereafter waive whatever rights they may have under the Water Extraction License. G. Company shall install its water pipe line at its sole cost and expense and shall return the property to its prior condition at Company's sole cost and expense. 7. Plaintiffs agree that no alterations to the natural land, improvements, building, or construction of any kind or character will be allowed in the flood or restrictive easements except as specifically provided herein. There shall be no construction allowed within the Flood Easement (2220 feet to 2245 feet) except for City approved walkways or steps. Limited construction of flatwork or patios will be allowed within the Restrictive Easement (2245 feet and 300 feet horizontal). The City and Plaintiffs have agreed to the Design Standards for Improvements Within the Flood and Restrictive Easements at Lake Alan Henry ("Guidelines") which Ashley/Fagan — Page 11 374787_1 provide standards for landscaping, walkways, flatwork, patios, etc. to be allowed after approval or permitting (See copy of Guidelines, attached as Exhibit B). Any construction allowed within the easements must be in compliance with TCEQ (Texas Commission on Environmental Quality) and the City through permitting process, including location and composition. The City will determine and approve construction materials, color, composition and durability pursuant to the Guidelines. The Guidelines, while subject to change and revision by the City, will not be altered without notice, public hearing and approval of the City Council. No other alterations to the natural land, improvements, building, or construction of any kind will be allowed in the easements, including but not limited to earthen pathways, ramps, or portable structures. The City has the right to enter Plaintiffs' property to inspect and enforce easements. 8. Should a final construction inspection pursuant to the Guidelines reveal that property owner has intentionally misled the City through the owner's submitted application or plan, such owner shall be required to immediately remediate the property at the owner's expense to comply with the Guidelines and/or the approved application or permit and will be subject to a fine not to exceed $2500. Further, should an inspection of the City's easements reveal that a property owner has constructed improvements without obtaining a construction permit, the owner shall be required to immediately remediate the property at the owner's expense to comply with these guidelines and/or a City approved application or permit and Ashley/Fagan — Page 12 374787_1 will be subject to a fine not to exceed $5000. 9. For Rio Brazos, Canyon and any future developments created by Plaintiffs, if they have not already done so, Plaintiffs will create a Homeowner's Association to enforce the terms of this Agreement. Should there be no Homeowners Association created for current or future developments, Company, Ashley and Fagan shall be responsible for enforcing the terms of this Agreement. 10. Plaintiffs acknowledge and agree that they shall not be entitled to any further boat ramps or docks on lands owned by Plaintiffs except as provided in Paragraph 4 above. Plaintiffs waive any right to receive or construct boat ramps or boat docks except as specifically provided herein in Paragraph 4. 11. Plaintiffs not in compliance with this Agreement or the unmodified terms of the MOA including, but not limited to, unauthorized structures, facilities, building, construction, improvements or alterations to the natural land within the easements agree to remediate their property in as much as possible to their natural state in accordance with remediation plans as approved by the City or consistent with the Guidelines. In the event the Plaintiffs or landowners of future lots sold in Rio Brazos, Canyon, or future developments violate this Agreement or the terms of the MOA, the City reserves the right to remove or lock down the boat dock in the development in which the violation is located until such violation is remediated. The City agrees to give Plaintiffs, the Homeowner's Association of the development, if applicable, or violator 15 (fifteen) days written notice of a Ashley/Fagan —Page 13 374787_1 violation and an opportunity to cure. If the violation is not cured within the 15 (fifteen) days but the Plaintiffs, Homeowner's Association and/or violator are taking reasonable steps in which to cure the violation then the City will not remove the boat dock. Reasonable diligence shall include instituting suit against the violator to enforce compliance and reasonably prosecuting said suit to final judgment. If the Plaintiffs or Homeowner's Association fail to prosecute a violator and the City is required to institute litigation or remove the boat dock to achieve compliance with this Agreement or the MOA, then the violator, Homeowner's Association or Plaintiffs will be required to pay reasonable costs of litigation and/or costs to re -install the boat dock. Should the City be required to appeal a final judgment, the City will be responsible for the costs of the appeal. Further, the City has the right to remediate within their easements and charge the violator with the cost to remediate and impress a lien on violator's property for the cost thereof. 12. Plaintiffs agree to keep the easements on their property, or any property purchased in the future abutting Lake Alan Henry, clear and clean from trash or debris. If upon 15 (fifteen) days written notice, the violator has failed to take steps to remove the trash or debris, the City has the right to clean up the property and charge the violating landowner for the cost. Failure thereafter for the violating landowner to pay the cost, the City has the right to impress a lien on the landowner's property. Ashley/Fagan — Page 14 374787_1 13. The City and Plaintiffs have agreed, as set forth in Paragraph 7 of this Agreement that no building, construction, improvements or alterations to the natural land will be allowed within the flood or restrictive easements except as provided herein. The MOA provided that no structure or facility would be allowed within the easements; however, the parties agree to clarify and modify the definition of structure or facility, except as consistent with the Guidelines, and delete limiting definitions of structures or facilities found on Page 6 of the MOA which provides structures and facilities are defined as water wells, septic systems, cesspools, barns, sheds, places of habitation and boat docks but did not include pens, gates, fences, cattle guards or boat ramps. The City, Plaintiff and Rio Brazos agree that no structure or facility, as well as no alterations to the natural land, improvements, construction or building shall be allowed within the easements including, but not limited to pens, gates, fences, cattle guards, boat ramps or anything man-made other than specifically authorized by this Agreement. Notwithstanding the foregoing, this Agreement does authorize the following: A. The structures in place or currently under construction as of the date of this Agreement on Lots 5, 9, 17 and 38 in Rio Brazos Estates and Lots 21 and 25 in Oak Canyon Estates which generally include walkways and fencing, and reasonable future maintenance of such improvements. B. In any part of the Option Property which is not, as of the date of this Agreement, currently within a platted subdivision or development, this Ashley/Fagan —Page 15 374787_1 Agreement shall not affect or prohibit the continued existence and maintenance of such fences, pens or cattle guards currently on such property. (Whenever Company or Ashley and Fagan shall record plats of any future developments, they shall have a reasonable time period to reconfigure fences, gates or pens to provide adequate livestock control outside the platted development(s) and relocate the same.) 14. Except as provided in Paragraph 7 and in the Guidelines, Plaintiffs, future lot owners in Rio Brazos, Canyon or future developments shall not disturb the native soil, land, rocks or vegetation within the easements with the exception that they may trim brush, grass or other vegetation one foot either side of any approved walkway allowed under this Agreement or as necessary to construct the walkway approved herein. In maintaining an approved walkway, Plaintiffs or future lot owners in Rio Brazos, Canyon or future developments may trim low lying brush and grass two feet on either side of the walkway as necessary for safety. Any other trimming, pruning or disturbance to the soil, land, rocks, trees or other vegetation within the easements must be approved by the City. 15. This Agreement is subject to State and/or Federal agency or regulatory approval. SIGNED this24thday of February , 2006. Ashley/Fagan — Page 16 374787_1 01/25/2008 17:10 FAX 806 373 3454 Sprouse Shrader Smith PC tguld/V44 Ashley & Fagan Investments Company, Inc. i THE STATE OF TEXAS § COUNTY OF sc� _ § This instrument was acknowledged before me on this S -day of Feyx 2006, by La w a I ng Fad , a person I know to be a duly authorized representative of A"y & Fagan Investments Company. Inc. '�e7 Ashleffagaa DRAFT 4 — Page 15 371011_1.DOC 01/25/2008 17:10 FAX 806 373 3454 Sprouse Shrader Smith PC la 019/044 Lyndell J. Ashley THE STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on this day of ¢ % . , 20M, by a person I know to be Lyndell Y. Asbley. ,uu,,Notary Public, State of Texas OR - v, _ tp,% Ar e of Ashley/Fag'an DRAFT 4 — Page 16 371011_LDOC 01/25/2008 17:10 FAX 808 373 3454 Sprouse Shrader Smith PC ij020/044 LaWayne Fagan THE STATE OF TEXAS § COUNTY OFSC,§ This instrument was acknowledged before me on this �` day of 01 • , 2006, by a person T know to be LaWayoe Fagan. H C� 6� Notary Public, State of Texas HE Ashley/Fagan DRAFT 4 — Page 17 371011_1.DOC 01/25/2008 17:10 FAX 809 373 3454 Sprouse Shrader Smith PC Ia021/044 Oak Canyon Estates Homeowners Association By- f (dJ Its: THE STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on this day of , 200b, by Fes, a person I know to be a duly authorized reptesamdve of Oak Canyon Estates Homeowners Association. \`4W�� :P Notary Public, State of Texas = N = 4)pe or Ashley/Fagea DRAFT 4 — Page 19 371011_1.DOC 01/25/2008 17:10 FAX 806 373 3454 Sprouse Shrader Smith PC IA022/044 Rio Brazos Estate Homeowner`s Association Its: h s THE STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on this 1`� day of r-3 q,6 • 2W6, by a person, l know to be a duly authorized repmsmtative of Rio Brazos Estate Homeownees Association. Notary Public, State of Texas ov: Ashley/F%m DRAFT 4 — Page 19 371011_1.DOC 01/25/2008 17:10 FAX 806 373 3454 Sprouse Shrader Smith PC IA023/044 City of Lubbock Texas. By: Its: THE STATE OF TEXAS § COUNTY OF "bock § fti This instrument was aciamowledged before me on thiso27_ day of C tax 20©b, by ') A iW'. h" person I know to be a duly authorized representative of City of= TexI Notary hlic„ state of Texas Ashley/Fagan DRAFT 4 — Page 20 371011_1.DOC APPROVED: Huffaker Sprouse Shrader Smith P. 701 S. Taylor, Suite 500 Amarillo, Texas 79101 Ashley/Fagan — Page 22 374520_1.DOC 1500 Broadway, Suite 400 Wells Fargo Center Lubbock, Texas 79401 Ashley/Fagan — Page 23 374520_I.DOC 01/27/06 10:05 FAX 806 998 4800 HUFFAKER & GREEN a 02 APPROVED: dirald x H, ffw= Crrecn H� P.O. Box 419 Taht" TX 79373 EXHIBIT I WATER PIPELINE EASEMENT AGREEMENT This WATER PIPELINE EASEMENT AGREEMENT (this "Agreement") is made this day of January, 2006, by and between CITY OF LUBBOCK, TEXAS ("Grantor"), and ASHLEY AND FAGAN INVESTMENTS CO., INC. ("Grantee"). WHEREAS, Grantor owns (a) a water extraction point and surrounding land situated near the northwest end of the Montford Dam on Lake Alan Henry (the "Lake") in Kent County, Texas, and (b) a portion of the 1.079 acre tract of land in Section 59, Block 5, H&GN RR. Co. Survey, Kent County, Texas, which is further described in this Agreement; and WHEREAS, Grantee owns subdivided parcels of real property commonly known as Rio Brazos Estates and Oak Canyon (the "Developments") that abut portions of the Lake; and WHEREAS, Grantee desires to obtain an easement from Grantor across portions of the property owned by Grantor for the construction, maintenance, repair and replacement of a water pipeline to service the Developments and Grantor desires to grant such easement to Grantee subject to the terms and conditions of this Agreement. NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Easement and Pipeline. Grantor does hereby grant and convey unto Grantee, its successors and assigns, a perpetual easement to survey, construct, reconstruct, operate, inspect, maintain, alter, relocate, replace, repair, and remove a water pipeline or conduit, and equipment and facilities related thereto, or any part thereof, for the transportation of water through, under, over, and across (a) Sections 56 and 57, Block 5, H&GN RR. Co. Survey, Kent County, Texas, and (b) the -I- portion of the 1.079 acre tract of land located in Section 59, Block 5, H&GN RR. Co. Survey, Kent County, Texas, which is specifically described on Exhibit "A" attached hereto and incorporated herein. The tracts of land described in subsections (a) and (b) are hereinafter collectively referred to as the "Lands." The portion of the easement located in Sections 56 and 57 shall be twenty-five (25) feet in width on each side of the 16.5 foot wide telephone line easement granted to Cap Rock Telephone Cooperative, Inc. pursuant to that certain Agreement dated January 13, 2005. The centerline description of the telephone line easement is attached hereto as Exhibit `B" and incorporated herein for all purposes. It is the understanding of the parties that the easement described on Exhibit `B" will allow Grantee to construct a water pipeline to fully connect the water extraction point on the Montford Dam of the Lake to the Rio Brazos Estates. If the easement described in Exhibit "B" does not allow for a complete pipeline connection from the water extraction point to the Rio Brazos Estates, Grantor agrees to grant to Grantee such other easement documents as may be necessary to realize the intent of the parties. The portion of the easement covering the 1.079 acre tract described on Exhibit "A" shall be fifty (50) feet in width and the specific location of the easement shall be identified by Grantee, subject to the approval of Grantor, such approval not to be unreasonably withheld or delayed. Further, a temporary construction easement is hereby granted which shall be an additional twenty (20) feet on both sides of the perpetual easement areas (or so much additional area as is reasonably required by Grantee for the construction of the pipeline and appurtenant equipment and facilities). The temporary construction easement shall terminate upon completion of construction of the pipeline and appurtenant equipment and facilities on the perpetual easement. -2- 2. Description of Grantee's Rights. The grant of easement herein contained includes: (a) the right to enter upon the Lands to survey, construct, reconstruct, operate, inspect, maintain, alter, relocate, replace, repair, and remove said water pipeline or conduit, and any equipment or facilities used in connection therewith, (b) the right (for men, material, and equipment) of ingress and egress to and from and access on and along said easement, with the right to use existing roads, for the purpose of surveying, constructing, reconstructing, operating, inspecting, maintaining, altering, relocating, replacing, repairing, and removing said water pipeline or conduit, and any equipment or facilities used in connection therewith, (c) the exclusive right to remove from or place on the Lands earth, rock, or other materials, and the right to trim, cut, and remove brush and other vegetative structures, (d) the right of ingress and egress upon and across the Lands for men, materials, and equipment in utilizing the easement and privileges granted, (e) the right to construct, reconstruct, operate, inspect, maintain, alter, relocate, replace, repair, and remove surface structures appurtenant to said water pipeline or conduit, (f) the right to construct cathodic protection facilities including power lines, drill anode wells (but not to pump or produce water from such wells), and construct pole - mounted control cabinets, (g) the right to install communication lines, either buried or overhead, and (h) the right in areas which are sandy and contain sand dunes or hillocks to remove sandy material outside the Lands so that the sand dunes and hillocks which are crossed can be sloped to their angle of repose. 3. Pipeline Depth. The pipeline shall be buried at a sufficient depth (or if it cannot be buried, otherwise located) so as not to interfere with Grantor's use of the Lands. 4. Grantor's Use. This grant of easement shall not preclude the right of Grantor to use and enjoy the Lands for any purposes which will not constitute an interference with the easement, rights, and privileges herein granted to Grantee, or endanger any of Grantee's property. -3- However, the rights reserved by Grantor as to the Lands shall not include the right to erect any build- ings, reservoirs, structures, or other improvements on the Lands without the advance written permission of Grantee. 5. Term of Grantee's. Rights. In case of permanent abandonment of said easements, the title and interest herein granted shall end, cease, and terminate, and title to the Lands, pipeline, equipment and facilities shall revert to the then owner of the Lands. Any such permanent abandonment will not be effective until it is evidenced by notice in writing, signed by Grantee, and filed of record in the counties where the Lands are located. 6. Existing Easements and Rights -of -Way. The grant of easement herein contained is subject to all easements and rights -of -way of record affecting the Lands. 7. Title. Grantor represents and warrants that it owns in fee simple the Lands described on Exhibits "A" and `B" and that it has full authority to grant the easements contemplated herein, subject only to subject only to (a) all easements and rights -of -way of record affecting the Lands, and (b) such other defects, interests, or encumbrances as may be waived in writing by Grantee. Grantor shall procure and have recorded without cost to Grantee all assurances of title and affidavits ; which the Grantor may be advised by Grantee are necessary and proper to show in Grantor title sufficient to grant the above easements free and clear of encumbrances other than those encumbrances expressly excepted herein. Abstracts or certificates of title or title insurance may be procured by Grantee at its expense. The expense of recording this Agreement shall be borne by Grantee. 8. Compensation for Water. Upon completion of Grantee's pipeline, Grantee shall be entitled to draw up to twenty (20) acre feet of water per year for delivery through the pipeline at no cost to Grantee. Thereafter, Grantee may elect to have delivered up to a maximum of an -4- an additional twenty (20) acre feet per year and Grantee shall pay to Grantor for such additional water at the rate provided in Tex. Water Code § (currently $1.81 per 1,000 gallons). Any amount payable by Grantee under this Section 11 shall be payable monthly. Grantee, at its expense, shall install a meter at the extraction point to account for the water drawn by Grantee pursuant to this Agreement. 9. Compromise Settlement Agreement. This Agreement is subject to the terms and conditions of that certain Compromise Settlement Agreement between Ashley and Fagan Investments Co., Inc., et. al, as Plaintiffs, and City of Lubbock, as Defendant, under Cause No. 1581, in the 39th District Court in and for Kent County, Texas. The sole consideration for the rights and privileges herein conveyed to Grantee shall be Grantee's execution of the Compromise Settlement Agreement. 10. Binding Effect. The terms and conditions hereof shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. [SIGNATURE PAGE TO FOLLOW] -5- 01/25/2008 17:15 FAX 906 373 3454 Sprouse Snrader SMItn PU 10 U44IV44 IN 'WITNESS WHEREOF, the parties hereto have caused this Agreement to be exocuted the year and day first above writte . GRANTOR: GRANTEE: INC. STATE OF TEXAS § COUNTY OF Lek. § By: ASHLEY AND FAGAN INVESTMENTS CO., Capacity: This instrument was acknowledged before me on the zi day o f Ja>�y, 006, by WDoUAA'. MAY o m of CITY OFT BOCK, TEXAS, a rnwn�el r ora, 02 , on behalfof said C//,i��ty CELIA WEBB No" Pa k SM of TOM Notary Public, State of Texas &MyCw4dMmE*U OOOt-2010 My commission expires- STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on the " day of Jartw, 2006, by n cucrx 21e s d of ASHLEY AND FAGAN IlNVES S CO., C., a -e rp ox�anheh of said corporation. t�� �`` �1E ..... , Notary Public, State of Tex �q fps > My commission expires: Oi l� 4 _ - 7- 9rE or- .......... -�4 01/25/2008 17:12 FAX 806 373 3454 Sprouse Shrader Smith PC la033/044 ExMIT "A" See attachment -7- C> �a cry ,2 cw�l 00 >c -mc LL- c'! co 4 cli Z Cl 4%4 are" v IF Ito ws sm. % AW%Sfg& &W W LM W WHM WW'M It"119i W SE" FiNT 10 A Mr,"A 104. 0"49 IN min 0499M. Died tart `jai U. go.. MINE ml-_Iuu ow, r Orr uw dium o"Mm SURVEY PLAT IW.N* - OF A C. 079 ACRE TRACT OF LAND, GEING,*A PART OF' OAK CANYON 'ESTATES IN 'SECTION 59. BLOCK S H . & G'.W. RR. -CO ., SURVEY", ;yCi. ... ... .... .... .. KENT'COUNTY., TEXAS 01/25/2008 17:13 FAX 808 373 3454 Sprouse Shrader Smith PC 12035/044 See attachment. -4x -8- Guidelines and Design Standards for Improvements Within the Flood and Restrictive Easements at Lake Alan Henry Introduction The City of Lubbock ("City") requires all construction projects that involve shoreline and land alterations within easements to adhere to the following design standards and review processes. The design standards in this document provide technical information for homeowners, developers and Homeowners Associations for improvements around Lake Alan Henry within the restrictive and flood easements' described in the agreements between the City of ,Lubbock and property owners. These guidelines are subject to change. These guidelines are parameters provided to assist property owners in obtaining efficient approval from the City for improvements within the restrictive and flood easements. ' The flood easement is from elevation 2220 feet above mean sea level tc elevation 2245 above mean sea level. The restrictive easement is the portion of the land which is between elevation 2245 feet above mean sea level and 300 feet horizontal distance from elevation 2220 feet above mean sea level if the 300 feet horizontal distance contains a larger area of land than is contained between elevations 2220 feet and 2245 feet above mean sea level. The area below the normal operating level of the lake Is defined as 2220 feet above mean sea level and is owned by the City of Lubbock. For detail refer to Agreement and Memorandum of Agreement dated on or about April 3, 1986 outlining settlement terms between Landowners and the City of Lubbock. See also, graphics on Page 2. Page 1 r FLOOD EASEMENT RESTRICTIVE EASEMENT AREA BETWEEN 2220 3 224S IF'X' < 30C THEN 3W HORIZAONTAL RESTRICTIVE EASFUENT (Y) APPLIES ;•" 7 3 X 'X' 2245 2245 Rt ELEVATION 2220' IS MEAN OPERATING LEVEL FOR LAKE. ELEVATION 224V 18 THE EMERGENCY SPILLWAY ELEVATION. Page 2 V. Application Process 1. An application and plans for any improvements within any easements or adjacent to the shoreline in any location must be submitted for pre - construction permit review. The City of Lubbock Parks and Recreation Department will coordinate the process, which must include review and approval by approval by your Homeowners Association (if any) or the development in which it is to be constructed. Owners must certify to the City that the application and plan for Improvement are consistent with these guidelines. Owners are responsible for complying with applicable federal, state and local regulations related to improvement construction. Provided that a Homeowners Association has adopted these Design Standards and the Homeowners Association has determined that the particular owner's plan is in compliance with these Design Standards, the City would expect to approve permit aoolications unless the plans appear to be substantially out of compliance with the guidelines. 2. The City of Lubbock will issue a construction permit for authorized improvements and provide construction inspection services. Permit applications should include: a. A completed permit application. To assist in approval, applications should include: i. The name, address, and phone number of the property owner ii. Acreage of the property iii. Brief description of the project iv. Detailed location map or site plan as provided for below V. The address and legal description of the property vi. Homeowners Association name and contact information vii. The name, address and phone number of the general contractor, or the identity of the individuals or entities performing the work viii. The name, address, phone number and license number of all registered professional engineers, architects or landscape architects who prepared the plans, if any. b. Storm Water Pollution Prevention Plan (SW3P). An SW3P must be submitted to Texas Commission on Environmental Quality (TCEQ), if required. A copy of the SW3P, if required by TCEQ, should also be submitted and retained as part of the City permit application. Page 3 C. Site plan. Site plans must be certified by the property owner as complying with these guidelines and to assist in approval should Include the following information: i. The location of the flood and restrictive easements ii. Location and detailed design of any improvements iii. If a walkway is part of the plan, include information about slope, steps and retaining walls, including topographic contours as reasonably necessary to allow fair evaluation of anv erosion impact created by the contemplated Improvement iv. Indication of areas of disturbance for improvements or walkway construction V. Location of any amenities such as lighting or patios vi. Existing and proposed utility service locations in easements d. Site revegetation plan, if appropriate. e. Typical walkway or patio cross section indicating types and thicknesses of surface and foundation materials and proposed construction techniques. f. Written evidence of review and approval by Homeowners Association and property owners as detailed in Paragraph 1 above. 3. Any changes proposed after the permit has been issued must be submitted in writing and reviewed and approved by the City of Lubbock prior to performance of that work. Provided the Homeowners Association has adopted these Design Standards and has approved the proposed changes. the City would expect to approve the changes unless the proposed changes are substantially out of compliance with these auidelines. 4. After the final construction inspection to determine that improvements were constructed according to the plans submitted, the City of Lubbock will issue a certificate of completion if the improvements are constructed according to plans and specifications, including any approved changes. 5. Owners are responsible for maintenance of improvements within the easements and for ensuring that eroding soil within the easements is contained. 6. Any addition to, replacement of or substantial rehabilitation of any improvement requires a new permit and review as outlined above. 7. With 'respect to applications for construction of improvements which have been approved by a Homeowners Association which has adopted P n ev'= A these Design Standards, the City will approve or reject the proposed permit within thirty (30) days of submission. Standards for Improvements in the Flood and Restrictive Easements at Lake Alan Henry The only amenity that may be constructed within the restrictive and flood easements on homeowner lots is a walkway for access to the Lake Alan Henry shore. A single patio may be built in the restrictive easement only. Any walkway and associated landscaping within the easements must meet the following standards: Walkway One walkway is allowed per platted lot within the easements.2 To minimize disturbance and soil erosion in sensitive areas, each walkway must have only one point of origin from above the restrictive easement line and one point of destination. Ne—deg; . If contiguous platted lots are incorporated into a single development parcel by one owner by landscape, fencing or other means, only one walkway will be allowed. As general rule, construction permits for walkways will not be granted where the walkway has branches, forking, or intersections or more than one point of destination. The City, and the Homeowners Association will consider, and may aplrove, limited departures from the general rule to allow more than one point of destination if such a departure is reasonable, but shall not be required to do so. Walkway Construction Standards 1. The walkway must be capable of withstanding flooding and meet TCEQ stormwater regulations. Grading must comply with SW3P permit standards regardless of the acreage or type of development on the associated property. Maintenance and clean up must be performed on the walkway after a flood event. The City of Lubbock may inspect for compliance after events. 2. Walkway shall be designed to minimize undercutting or walkway deterioration due to erosion and water damage. Owners are `2 Platted lot is defined as piece of land described on a map of the subdivision showing the location and boundaries of tracts and/or lots, as well as other information, prepared by a registered professional, and filed in the county clerk's office as a legal designation for the illustrated tracts, lots, streets and easements. Page 5 r responsible for frequent examination of walkways and prompt repair of undercutting and erosion damage, particularly at the lakeshore. 3. Walkway design should minimize views of the walkway surface and/or face of steps, if any, from the lake surface and should minimize the disturbance of the natural landscape. For example, see graphic on Page 6. PATHS PARALLEL TO THE NATURAL GRADE OF'THE ENVIRONMENT ARE ENCOURAGED. PATHS PERPENDICULAR TO THE NATURAL GRADE OF THE ENVIRONMENT SHOULD BE MINIMIZED. 4. Walkway Grade and Cross -Slope. The following standards should be used in the design of the walkway. However, ' certain natural conditions, or limiting factors, can present environmental barriers that make total adherence to the standards impossible. If these limiting factors are present and will affect the walkway design and construction, they should be noted and addressed in the permit application. a. On graded sloped walkway surfaces, no more than 30% of the total walkway length may exceed a walkway grade of 1:12 (8.33%). Walkway grade of up to 1:20 (5%) Is permitted for any distance. b. Where walkway grade exceeds 5%, the maximum segment length shall not exceed 200 feet. Periodic level graded surfaces are encouraged. Page 6 c. Where grades require the use of steps, see section S. d. At natural drainage crossings, permitted for no more than 5 See graphic below. a walkway grade of 1:7 (14%) is feet. Culverts are also allowed. S'-O" WIDE MAX WITH MAX CROSS SLOPE OF 1:7 e. The cross slope shall not exceed 1:20 (5%). f. Minimum width of the walkway in the absence of limiting factors Is three feet. Maximum width of the walkway is €etrr six feet. No resting spots exceeding the walkway width will be allowed. g. A 3-foot wide swale is allowed parallel to the walkway for drainage when grades exceed 30%. S. Stairs. The following standards should be used in the construction of stairs. a. Risers shall be no less than 4 inches and no more than 7 inches in height. It is encouraged to provide generally consistent riser 'height at each run of steps. b. Treads shall be no less than 11 inches in length. C. Width of stairs shall be a minimum of 36 inches. d. It is encouraged that there be no more than 12 vertical feet between landings. Landings shall be as wide as the stairs and have a minimum length of 48 inches between risers. 6. Construction of the walkway should minimally impact the natural landscape of the lake area. Walkway construction must not disturb an area wider than I (ire)-€eet two (2) feet either side of the walkway and associated drainage structures. Any disturbed area must be restored according to the standards in the landscaping section below. `7. Within the restrictive and flood easements, the walkway may be constructed of natural or man-made stone, tumbled brick, concrete pavers, tumbled concrete pavers or integrally colored 3000 psi broom - finished concrete. In order to prevent soil erosion, stone and brick must be placed on concrete slab sub -base and mortared and grouted or on ,a sand base with a concrete border. See graphic on Page 8. Page 7 V STONE OR BRICK SET IN MORTAR STONE OR BRICK ON SAND BED T-0" WIDE ZWel F MAY -n- wmF MeY Page 8 7 _ _ SEIL 9. All walkway construction materials must be In tones that blend into the surrounding soil colors. No earthen walkways, loose gravel, chat, asphalt, stone chips or "stabilized soil" will be allowed. See Appendix B for color palette. 10. 11. Retaining walls must be constructed of the as the walkway. Maximum height of any from the adjacent walkway grade. However, concrete masonry units may be used as a structural component if exposed surfaces are clad with tumbled brick or tumbled concrete pavers or natural or manmade stone. At a minimum, provide masonry wall ties between concrete masonry units and the veneer (clad) material. Poured in place integrally colored retaining walls with sandblasted face are also allowed. At one location along the walkway, a run of retaining wall no more than 6 feet in length may be constructed to a maximum width of 18 inches and a maximum height of 18 inches above adjacent walkway grade to serve as a seating area. Footings for retaining walls shall conform to the design requirements of the currently adopted International Building Code (IBC), chapter covering Soils and Foundations for Footings and Foundations. If brick or concrete masonry is used, additional references include the Brick Institute of America same palette of materials retaining wall is 36 inches (BIA) Technical Notes and the P'Inu a J National Concrete Masonry Association (NCMA) Tek Manual Notes for masonry retaining walls. Allowed within Restrictive Easement The following amenities may be allowed within the restrictive easement (not in the flood easement): 1. Patio. A single patio may be built -within the restrictive easement. Patios must be built on naturally flat areas and may not be cantilevered or raised on stilts. Patio surfaces may be constructed of natural or man-made stone, tumbled brick, tumbled concrete pavers or integrally colored concrete In tones that blend into the surrounding soil colors. Stone and brick must be placed on a sand base with concrete border or mortared onto a concrete slab base to prevent soil erosion. Patios shall not exceed a total footprint of 20' x PA.rgs -- 2. Moveable furnishin s. UtIoK MAYNOTBECANTILEVERED 9 OR RAISED ON 8TITLS. Movable furnishings such as small grills, chairs, benches and tables are allowed only on patios. Moveable furnishings must be moo: BUILD D e"s ON NATURALLY FLAT AREAS unobtrusive and minimize the visual impact on the natural landscape of the lake area. 3. LP gas containers. A single portable LP gas container with a capacity of 10 gallons or less is allowed for temporary use (less than 12 hours). 4. Lighting. Lighting fixtures on walkways and patios are allowed. Such fixtures shall not exceed 36 inches in height from walkway grade, with foot-candles not to exceed that emitted by 30-watt halogen bulbs. Low voltage (12 volt) or solar landscape lighting is also allowed. Page 10 Fixtures may be bronze or black in low -reflective finishes. Integrally colored concrete bollards are also allowed. S. Utilities. Water and electrical service must be underground and located within the area of disturbance allowed for walkway construction. Hose bibs are only allowed at patios, and must be frost - proof. Water service is not intended for landscape Irrigation. Landscaping 1. However rugged the Lake Alan Henry area may appear, the lake environment is fragile and subject to erosion. Therefore, landscape planting Is generally limited to areas of disturbance caused by walkway and patio construction. In other areas of the flood and restrictive easements, landscape materials should be planted only to impede soil erosion. 2. The intent of any landscape installation within the flood or restrictive easement should be to blend into the native landscape. Although the area around Lake Alan Henry appears to be totally natural, some of the area's environment has been changed by centuries of human habitation. Therefore, the approved plant materials list (Appendix A) Incorporates native and non-native species that are adapted to the arid climate of the Lake Alan Henry environment. 3. If grading of surface terrain Is needed, the grading plan should be designed to capture runoff and prevent erosion. 4. If irrigation Is needed to establish landscape materials or during extended periods of drought, temporary Irrigation may be used. Temporary irrigation systems shall be constructed of flexible irrigation pipe with low -volume emitters. No part of the system may be installed below ground within the flood or restrictive easements. Temporary irrigation may be in place for no more than two growing seasons. S. Soil erosion mats should be used to hold seed and soil in place in areas of disturbance. Page 11 Appendix A: Approved Plant Materials Deciduous Trees Desert Willow Soapberry Hackberry Mesquite* Plains Cottonwood Evergreen Trees Oneseed Juniper Redberry Juniper* Rocky Mountain Juniper Eastern Red Cedar Pinyon Pine Chilopsis linearls Sapindus drummondii Celtis laevigata Prosopis gladulosa Populus deltoids occidentalis luniperus monosperma luniperus pinchotii luniperus scopulorum luniperus virginiana Pinus edulis Deciduous Shrubs Silverleaf Mountain Mahogany Cercocarpus montanus 'argenteus' Prairie Fiameleaf Sumac Littleleaf Sumac Feather Dalea Chamisa Plains Greasebush Apache Plume Havard Oak Three -Leaf Sumac* Autumn Sage Escarpment Live Oak Four -wing Salt Bush Evergreen Shrubs Condalia* Agarito* Native Grasses Indiangrass Canada wildrye* Sand biuestem* Little bluestem* Side -oats grama* ,Blue grama* Plains bristlegrass* Buffalo grass* Rhus lanceolata Rhus microphylla Dalia formosa Chrysothamus nauseosus Glossopetalon planitierum Fallugia paradoxa Quercus ha vardil Rhus aromatica Salvia greggii Quercus fusiformis Atriplex canescens Condalia hookeri Berberis trifolio/ata Sorghastrum mutans Elymus Canadensis Andropogon hallii Schizachyrium scoparium Bouteloua curtipendula Bouteloua gracilis Setaria leucopila Buch/oe dactyloides Pave 17 Yucca and Cacti Red Yucca Spanish Dagger Plains Yucca* (Narrowleaf) Prickly Pear Native Wildflowers Snake Herb Puccoon Broomweed Lazy Daisy Wreath Aster Blackfoot Daisy Mexican Hat Sand Verbena Prairie Evening Primrose Texas Buttercup Blue Gilia Bluets Pink Plains Penstemon Purple Foxglove Blue Vervain Hesperaloe parviflora Yucca spp. Yucca glauca Optunia sp. Dyschoriste linearls Lithospemum incisum Amphiachyris draculoides Aphanostephus riddellil Aster ericoides Melampodium leucanthum Ratibida columnaris Abroia fragrans Oenothera albicaulis Oe. Triboba Gilia rigidula Hedyotis humifusa Penstemon ambiguous Penstemon fendleris v. o>ficinalis ssp. hale! Page 13 ., Appendix B: Color Palette Pantone Color 7536 C 452 C 451 C 10514-6C 105329-7C 7530 EC 7504 PC 105317-8C 5451 M 5855 C 7503 M 871 U 5845 U 5835 U 105314-6C 465 U 874 U 730 U Page 14 01/25/2008 17 13 FAX 806 372 3464 Sprouse Snraaer smiln FU W U-ON_ SLMVEYMG M. -INC*'. F0g&"fdmdPAo*sWWLand &N-WWM MCAS NEW MOM • ARIZONA* NEVADA UTM'. RASDMT Ceftwtve dila'lptloe of a 16.5 fa* Wqftft awwt bo*M'ln &was Tan wW bftmoil PWUOA* dowbad by mifts ww f* wim0we at a W Iron WA yft dap marked IWXr at ftrft bap rWng or da =do** deswlpftv whenwe the l*ww*v* mw of So dim 70 okck-3,H.& G.N. R.R. C& &wvW, a %WW I-lW IM P4W beaft Haft lWilf eag, 308-36 fee and Haft 8807AW WA*v 230M ft* TRUCE South 8Mr47* Enk *rq the WMAN of OWLS fW* Wq*WW imi w n witi a dMam of-223,96 hwt to a ed WVw Rod with cop Modred "#SaAl; TMMcv 6" MM" gk*, *M tft cw&ff[4u of *dd IGJ fM telsOMM t a,dowico C(UI&96 ftdto a-ld WkM Rod VftaO add "W TRUCK North 72WS0 Ea*k *M die m"ftw of se & iLS Wephone wwns"4 a dbWm of 3X= ftd to a at W bw Rod *0 cap rnvdW"WSC[A',, TRIM Sw* 604 M" East dong tfw cbto*ko of agd-IGJ fact booto& qwmm*t a 4MWM of 4WJ3 *4 to a at W TM RW vft cnp.MWW OWSCn THEM Moth W2W42P DIL dam do coft0w of sod ILS fbot hiaphone usamrit, a ddwca of 1233AI %A to a at W Im AW with cap mwked 10W,,l TMM South 6003442r t alorq the ceftwIn of acid 26A Imm'MiapDieu enemenkca db*m of 2433AI het tDaeat Wlean Wvft cop air, I.WScri TWJNX South 2VWSr fat, dogg the weafto of said 16J " Wa0wo AWAM4 a dWWm of 709.34 pertW a -me W Im ftd- wM asp *W-W-vwl - TRIM South 36AW4r we&, ==ft wMar Rris toot tdo0wa eaaemedy a a1wrM.Or 13" Cop M" lowscose tUBM South 99"1%V lwk Wor4ft oftft of x0d ILS W tdophom owneft a- dstarm of 2078.27 fat to a ad W h" Rod with cop ma" Titaw ftA 6636S041 ftog WMV the or&"* of MW J#j fad tda0WW moneA a delarm of MOM fast to i mt W Rw Rod with ap marked VSM (SM 79247319 Fax PM 792-180 a 3=10th-SbeK Suke 201 -a.Lubbo*, Tom 79413 ig Vab/ V44 01/25/2006 17:13 FAX 808 373 3454 Sprouse Shrader Smith PC " 1?037/044 1 j nWON''SMVMG CO., INC. Sash 9104M.' lit, MW4 VW at Ltd lU to* tdap"A tN iakoar►cwi% a d obum of 2324.97 tad to a M W IM Nod wRb ap nwftd "W$C'f THMM south 58oZ5w we*, *" dw owe d aid 16.5 woof s�8000 o = ar , a dhbnao of 105GAS, d � o yet w khan 1td tcoRb e�ap to blww-**$wf for dlte,aAd of this draipbom. yrlwrdd t'#>It I�oilhaa! ao�rraor at9 Uoa S7, wodc !l tl' & 4A tiff. Cs. Stir mr s ft d 1-1.W bw Apek b 8outlt &,0;l; r one, 1457.56 hot and North ia97W dart.14GL74 f{aaL pil Jl tl1 874.92 raft awkw we Igm booed on U~ caw refit, Korn Tom llwe co" Z+ww A Od of rM daft harswlth MMn tl4i kpd &WWM Su "VW a1 tM wow awns Wit,; IM rf� J i ptnrk-+doc . #36OM (a" M 4M • Fax (SM 799-1848 0 SM / M ftaK a im gM 11TOoarm 79418 CRAIG, TERRILL, HALE & GRANTHAM L.L.P. ROBERT L. (BOB) CRAIG, JR., P.C. H. GRADY TERRILL KENT HALE TERRY L. GRANTHAM HUGH N. LYLE LEONARD R. (BUD) GROSSMAN BENNETT G. COOK, III GARY BELLAIR JANNA KAY FULFER ANGELIA B. LEE BRAD J. DAVIDSON BARBARA BAUERNFEIND HOLLY HASELOFF February 23, 2006 ATTORNEYS AT LAW A LIMITED LIABILrrY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 1500 BROADWAY SUITE 400, WELLS FARGO CENTER LUBBOCK, TEXAS 79401 P. O. BOX 1979 (79408-1979) TELEPHONE: (806) 744-3232 TELECOPIER: (806) 744-2211 Via Hand Delivery The Honorable Marc McDougal Mayor - City of Lubbock P. O. Box 2000 Lubbock, Texas 79401 FROM THE OFFICE OF: BOB CRAIG (ExT.107) E-MAIL ADDRESS: BO BC®CrHGLA W F I RM.COM Re: ASHLEY AND FAGAN, ET AL V. CITY OF LUBBOCK No. 1581- 39`h District Court of Kent County, Texas Our File No. 6205.0003 Dear Mayor McDougal: Enclosed is a Compromise Settlement Agreement signed by Ashley and Fagan Investments Company, Inc., Mr. Ashley, individually, and Mr. Fagan, individually. In addition, it has been approved by the Oak Canyon Estates Homeowner's Association, and the Rio Brazos Estate Homeowner's Association. The Water Pipeline Easement Agreement has also been approved by Ashley and Fagan. This is the Compromise Settlement Agreement that will be presented to the City Council v on February 24. Grady and I will both be present if there are any questions concerning the agreement. Please call me if you want to visit with us prior to the meeting tomorrow. Yours truly, BC/js enclosures ZANTHAM, L. L.P. February 23, 2006 Page 2 cc: (w/enclosures) Mr. Tom Martin Mayor Pro Tem - City of Lubbock P. O. Box 2000 Lubbock, Texas 79401 Ms. Anita Burgess City Attorney - City of Lubbock P. O. Box 2000 Lubbock, Texas 79401