Freeport NIP(7.6)-ES010110STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS §
RECIPROCAL EASEMENT AGREEMENT
This RECIPROCAL EASEMENT AGREEMENT ("Agreement") is made as of (although
not necessarily on) January 1,2001, by and among TEXAS DUGAN LIMITED PARTNERSHIP,
a Texas limited partnership ("Dugan") and R. L. Robertson, L.L.C., a Texas limited liability company
("Robertson").
WITNESSETH:
A. Robertson is the owner of certain land described on Exhibit A attached hereto and
incorporated herein by reference (the "Robertson Land").
B. Duke-Weeks is the owner of certain land described on Exhibit B attached hereto and
incorporated herein by reference (the "Dugan Land").
C. A portion of a house situated upon the Robertson Land (the "Encroaching House")
encroaches upon a portion of the Dugan Land, and Robertson desires to secure the consent of Dugan
to maintain the Encroaching House in its present location.
D. The Robertson Land adjoins the Dugan Land, and Dugan desires to construct a
drainage system upon the Robertson Land, in extension of the drainage system contemplated to be
constructed by Dugan upon the Dugan Land, and in consideration of the payment to Robertson by
Dugan of the Access Fee (as hereinafter defined) and the granting of an easement to Robertson with
respect to the Encroaching House, Robertson is willing to grant an easement permitting Dugan to
construct and maintain such drainage system, subject to and upon the terms and conditions contained
herein.
NOW THEREFORE, for and in consideration of the foregoing, the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties to this Agreement hereby agree and covenant as follows:
1. Access Fee. In consideration of Robertson entering into this Agreement and granting
to Dugan the easement rights provided under this Agreement, Dugan (via check issued by Duke-
Weeks Realty, LP to Robertson) has paid to Robertson the sum of Twenty-Five Thousand Dollars
DRAINAGE EASEMENT - Page
($25,000.00) (the"Access Fee"). Robertson hereby acknowledges Robertson's receipt of the Access
Fee.
2. Construction of Dugan Drainage System. No later than fourteen (14) days prior to
the commencement of construction, Dugan shall notify Robertson that it intends to commence
construction of its drainage facilities upon the Robertson Land. No later than April 1, 2000 (the
"Completion Deadline Date"), Dugan shall complete (except for any seeding or sodding remaining
to be performed) in all material respects the construction ora drainage system (the drainage system
constructed by Dugan, as from time to time modified, is sometimes hereinafter referred to as the
"Dugan Drainage System") upon the Robertson Land. The Dugan Drainage System shall be
constructed upon the area (the "Drainage Easement Area") depicted on Exhibit C attached hereto.
Notwithstanding any term or provision of this Agreement to the contrary, the Completion Deadline
Date shall be extended to the extent that Dugan' performance is delayed by virtue of natural
catastrophe, contractor bankruptcy, or any other unforseen problem outside the reasonable control
of Dugan (each, a "Force Majeure Delay").
3. Delay in Completion of Construction of Dugan Drainage System. In the event that
construction of the Dugan Drainage System is not completed on or before the Completion Deadline
Date, then Dugan shall pay to Robertson a penalty in an amount equal to the product of(i) $250.00
per day, times (ii) the number of days of delay in the completion of the Dugan Drainage System
subsequent to the Completion Deadline Date not attributable to Force Majeure Delay.
4. Grant of Easement. Robertson hereby grants, bargains, sells and conveys to Dugan,
its heirs, representatives, successors and assigns, the free and uninterrupted use, liberty and
privilege of passage in, along, upon, and across the Robertson Land for the purpose of
constructing and maintaining the Dugan Drainage System upon the Drainage Easement Area with
the right and privilege at all times, of Dugan, its agents, employees, workmen and representatives
having ingress, egress, and regress in, along, upon and across the Robertson Land for the purpose
of making additions to, improvements on, and repairs to said drainage system or any part thereof.
5. Construction Activities; Restoration. Dugan may remove such fences or other
obstructions as may impede the construction of the Dugan Drainage System; provided, however,
that Dugan agrees to use its best reasonable efforts to protect existing trees and avoid the
destruction of the 36 inch oak tree, as depicted and noted on Exhibit C, situated upon the
Robertson Land. In the event any fence or portion thereof is so removed, Dugan shall cause its
contractor to install a temporary chain link fence to secure the point of access; provided,
however, that Dugan shall not be liable for any unauthorized entry by any party upon the
Robertson Land or for any damage, loss or injury to any person or property resulting from any
such unauthorized entry. Upon completion of the Dugan Drainage System, Dugan shall, except
for removed obstructions, return the surface area of the Drainage Easement Area to its original
condition as nearly as practical taking into consideration the nature of the work being performed.
Dugan warrants to Robertson that the paving and improvements installed by Dugan shall be
constructed in a good and workmanlike manner.
DRAINAGE EASEMENT - Page 2 bi,~k~-~.~V~.-~,, ~
6. Encroachment Easement. In consideration of the easement rights granted to Dugan
hereunder, Dugan hereby hereby grants, bargains, sells and conveys to Robertson, and Robertson's
heirs, successors, and assigns, the permanent right to maintain the Encroaching House or any
successor structure Robertson may hereafter choose to erect, in its present location, which
encroaches upon a portion of the Dugan Land, the area of such encroachment (the "Encroachment
Area") being as shown on Exhibit D attached hereto and made a part hereof; provided, however, that
in the event Robertson does erect any successor structure, same shall be constructed and maintained
in accordance with all applicable laws, ordinances, and governmental regulations.
7. Successors and Assigns. The easements hereby granted, the obligations hereby
imposed, and the other agreements herein contained (whether affirmative or negative in nature) shall
be perpetual easements, obligations, agreements, and covenants running with the Robertson Land,
and the Dugan Land (as applicable) and shall inure to the benefit of, and be binding upon, the parties
hereto and their respective heirs, legal representatives, successors, and assigns (including, without
limitation, subsequent owners and ground lessees of the property benefitted or burdened thereby) and
all persons claiming under them. For the purposes of this Agreement, the terms "Robertson" and
"Dugan" mean the parties to this Agreement and the subsequent owners of the Robertson Land and
the Duke-Weeks Land (or any portion of the Robertson Land or the Dugan Land), respectively.
8. Limitation on Obligations. The obligations of Robertson, Dugan, and subsequent
owners of the Robertson Land and the Dugan Land, respectively, are limited to the obligations
accruing during their respective periods of ownership, and upon the conveyance of any portion of the
Robertson Land and the Dugan Land by the owner thereof, such property owner's rights and
obligations under this Agreement with respect to the portion conveyed shall cease and terminate
effective as of the date of such conveyance. At that time, such property owner will be released of all
further obligations (except for obligations accruing prior to the date of such conveyance) and the
grantee will succeed to such rights and obligations from and after the date of conveyance.
9. Interpretation. Whenever the singular or plural number, masculine or feminine or
neuter gender is used herein, it shall equally include the others and shall apply jointly and severally.
The terms "hereof', "hereunder", Hherein" and words of similar import shall refer to this entire
Agreement and not to any particular section or paragraph of this Agreement. All references to
Sections are to this Agreement unless otherwise specifically noted. This Agreement has been
negotiated and jointly prepared by Robertson and Dugan with the assistance of their respective legal
counsel and the parties agree that, notwithstanding any otherwise applicable rule of law or principle
of interpretation to the contrary, no term or provision of this Agreement shall be interpreted in favor
of or to the detriment of either party by virtue of the authorship or purported authorship hereof.
10. Notices. Any notice which a party is required or may desire to give to any other party
shall be in writing and shall be sent by courier or other method of hand delivery, by United States
registered or certified mail, return receipt requested, postage prepaid, or by a generally recognized
overnight carrier regularly providing proof of delivery, addressed as follows (subject to the right of
DRAINAGE EASEMENT - Page 3 bi,~a~-~,~,~lr~o~o~ ~
a party to designate a different address for itself by notice similarly given):
To Robertson: R.L. Robertson, L.L.C.
Attention: Ron Robertson
569-A South Coppell Road
Coppell, Texas 75019
To Dugan: Texas Dugan Limited Partnership
c/oDuke-Weeks Realty Limited Partnership
5495 Beltline Road, Suite 360
Dallas, Texas 75240
Attn: Jeff Turner
Any notice so given by courier or other method of hand delivery shall be deemed to have been given
on the date of delivery to the relevant address. Any notice so given by mail shall be deemed to have
been given on the earlier to occur of(i) three (3) days after deposit in the mails, or (ii) as of the date
on which delivery is either accepted or refused, as established by U.S. Post Office return receipt. Any
notice so given by a generally recognized overnight courier shall be deemed to have been given on
the date delivery is attempted or made, as established by the overnight carrie~s proof of delivery, as
the case may be. Any party hereto may change its notice address by delivering a new address to the
other parties in accordance with the notice requirements set forth herein.
11. Further Instruments. The parties hereto agree to execute any and all further
instruments and documents and take all such action as may be reasonably required by any party hereto
to effectuate the terms, provisions and intent of this Agreement.
12. Subordination; Consent. Any mortgage, deed of trust, ground lease, or other lease
hereafter granted or entered into with respect to the Robertson Land or the Dugan Land shall be
subject, subordinate, and inferior to the easements, rights, benefits, and obligations created hereby,
and the foreclosure under any such mortgage or deed of trust shall not extinguish or impair the
easements, rights, benefits, and obligations created by this Agreement. Dugan hereby represents and
warrants that no mortgage, deed of trust, ground lease or other lease currently encumbers the
Duke-Weeks Land.
13. Modification or Amendment. This Agreement may not be terminated, amended,
modified, altered, or changed in any respect except by an amendment in writing duly executed by
Robertson and Dugan.
14. Severability. If any of the provisions in this Agreement or the application thereof to
any person or situation shall, to any extent, be held invalid or unenforceable, the remainder of this
Agreement and the application of such provisions to persons or situations other than those as to
which it shall have been held invalid or unenforceable, shall not be affected thereby and shall continue
DRAINAC~E EASEMENT - Page 4 ~u~-~~~ ~a
valid and be in full force to the fullest extent permitted by law.
15. Headings. The headings and captions contained in this Agreement are for convenience
and reference only and in no way define, limit or describe the scope or the intent of this Agreement.
16. Governing Law. The validity of this Agreement and all of its terms and provisions,
as well as the rights and duties of the parties, shall be interpreted and construed in accordance with
the laws of the State of Texas.
17. Exhibits. All exhibits referred to herein and attached hereto are hereby incorporated
into and made a part of this Agreement for all purposes.
18. Entire Agreement. This Agreement embodies the entire agreement between the parties
relating to the subject matter hereof and supersedes all prior agreements and understandings, if any,
relating to the subject matter hereof.
19. Multiple Counterparts. This Agreement may be executed in a number of identical
counterparts, each of which shall constitute an original and all of which shall constitute, collectively,
one agreement. In making proof of this Agreement, it shall not be necessary to produce or account
for more than one such counterpart.
20. NO WARRANTIES OR REPRESENTATIONS; WAIVER OF DECEPTIVE
TRADE PRACTICES ACT. NEITHER DUGAN NOR ROBERTSON HAS MADE ANY
REPRESENTATION OR WARRANTY WITH RESPECT TO ANY MATFER PERTAINING
TO THIS AGREEMENT EXCEPT AS EXPRESSLY PROVIDED HEREIN. EACH OF
ROBERTSON AND DUGAN HEREBY WAIVES, TO ~ FULLEST EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT, REMEDY OR CAUSE OF
ACTION WHICH ROBERTSON OR DUGAN, AS THE CASE MIGHT BE, MIGHT
OTHERWISE ASSERT OR TO WHICH ROBERTSON OR DUGAN MAY OTHERWISE
BE ENTITLED UNDER THE DECEPTIVE TRADE PRACTICES ACT OR ANY OTHER
CONSUMER PROTECTION STATUTE NOW OR I~EREAFTER IN FORCE IN THE
STATE OF TEXAS. EACH OF DUGAN AND ROBERTSON ACKNOWLEDGES THAT
IT IS NOT A "CONSUMER" IN RESPECT OF ~ DRAINAGE SYSTEM
CONSTRUCTED BY SUCH PARTY AND THE OTHER PARTY HAS MADE NO
REPRESENTATION OR WARRANTY WITH RESPECT Ti:I'ERETO, AND EACH OF
DUGAN AND ROBERTSON ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO
THIS AGREEMENT TO ACQUI]~ ANY GOODS OR SERVICES. IN NO EVENT SHALL
DUGAN OR ROBERTSON HAVE ANY DUTY, LIABILITY OR OBLIGATION TO THE
DRAINAGE EASEMENT- Page 5 ~a~k~-,~l~,~t~ ~
OTHER PARTY EXCEPT ONLY TO THE EXTENT EXPRESSLY PROVIDED
OTHERWISE IN THIS AGREEMENT.
[The remainder of this page intentionally lei~ blank.]
DRAINAGE EASEMENT - Page 6 ~k~,~.~v~~ ~
IN WITNESS WHEREOF, the parties have made and executed this Agreement as of
(although not necessarily on) the date first above written.
DUGAN:
TEXAS DUGAN LIMITED PARTNERSHIP, a Texas limited partnership
By: DUGAN GENERAL PARTNER LLC, a Delaware limited liability
company, its general partner
By: DUGAN TEXAS LLC, a Delaware limited liability company,
its sole member
By: DUKE-WEEKS REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke-Weeks Realty Corporation,
an Indiana corporation, its general partner
Title~,xq~ Vice President
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me on this /~/'/Lday of ~)'~.,~4 .2001,
by Jeffrey D. Turner, Senior Vice President of Duke-Weeks Realty Corporation,0an Indiana
Corporation, general partner of Duke-Weeks Realty Limited Partnership, an Indiana Limited
Partnership, manager of Dugan Texas LLC, a Delaware limited liability company, sole member of
Dugan General Partner LLC, a Delaware limited liability company, general partner of Texas Dugan
Limited Partnership, a Texas limited partnership, on behalf of said limited partnership
Commission
Expires:
DRAINAGE EASEMENT- Page 7 I(';~'~?~t no'raa¥ plJfi~.,C ~la~.j~~ ~
Robertson:
R. L. ROBERTSON, L.L.C.,
a Texas limited ' "
Name: Ronald L. Robertson
Title: Manager
STATE OF TEXAS §
COUNTY OF DALLAS §
The foregoing instrument was acknowledged before me this I~) day of ~ ~,~ ~('., 2001,
by RONALD L. ROBERTSON, the Manager ofR. L. Robertson, L.L.C.., a Texas limite/i liability
company, on behalf of said limited liability company.
(Signat~ire of Notary Public - State of Texas)
My Commission/, Expires: ~t~ ¢'[4 /~tnxq'-'~C[&elF
[[¢ '1 ~,~ (Print, type or stamp name of Notary Public
II%.LJ~.L..] My Commi,,i~, E..pit¢, JJ
DRaMNAGE EASEMENT - Page
EXHIBIT A
Legal Description - Robertson Land
Being all that certain real property more particularly described in Exhibit A to that certain
Special Cash Warranty Deed from Ronald L. Robertson to R.L. Robertson, L.L.C., recorded in
Volume 98170, Page 05864 of the Deed Records of Dallas County, Texas and in Exhibit A to that
certain Special Cash Warranty Deed from Robertson Commercial Pools, Inc. to R.L. Robertson,
L.L.C., recorded in Volume 98170, Page 05904 of the Deed Records of Dallas County, Texas
EXlqlBIT A - Legal Description - R0bertson Land - Cover Page
EXI-I~IT B
Legal Description - Dugan Land
Being all that certain tract of land in the County of Dallas, State of Texas, as more particularly
described in Exhibit "A" to that certain Special Warranty Deed fi.om NCH Corporation to Duke-
Weeks Realty Limited Partnership executed as of May 9, 2000 and recorded in Volume 2000092,
Page 03737 of the Real Property Records of Dallas County, Texas, and being the same tract
described in deed to NCH Corporation, recorded in Volume 800022, Page 27 of the Deed Records
of Dallas County, Texas.
EXHIBIT B - Legal Description - Dugan Land - Cover Page
EXI-IIRIT C
Drainage Easement Area
[The depiction of the Drainage Easement Area follows this cover page]
EXHII~IT C - Drainage Easement Area
'~' EXHIBIT C
OF lID(AS, L.P. 'PK' NAIL ....
RUB_Y: PLANTA TIOJV
(A VARIABLE VaD~ PUBUC
PO;NT OF"
COMMENCING L
5o ,oo 2oo 3oo
GRAPHIC SCALE IN FEET S~IKE FOUN0
LL~7 N TEXAS POWER ac UGHT COMPANY---/I
N 00'44'13' i: (voc 2~08. PO. 42?) OENERAU. Y
La N 44'1~'47' W ~4.87' FOU.OWS ALONG ~ ~t:ST I ,JOY C. SNYDER
Lg N ~rl5'47' w ~1.4,5' UNE OF COPP£U. ROAD ~:1
UO N 04'O2'LKY' W ~0.07'
'
I lbe~r~g of North O0 degree~, 40 mlnute. O0
II,ec~d~ g~*t for the east right-of-way line of
Ilstete R~d ~ccording to the Special Wm~nty
II Oeed to NC~ corp~euo~, rec~'ded in Volume P.J.. ~ LLC
11~oo22. Page 311 of the Deed Records of Dallaa ~(~
PROPOSED DRAINAGE:
EASEMENT DUKE-~:EKS REALTY CORPORATION
AX~:(VOL 2000092. PG. 3739) '/~O~O~av~--~
S 04'02 20 ,E, ' " W '
(VOL. 95243. PG. 2071)
DRAINAGE EASEMENT
EXHIBIT C
DRAINAGE EASEMENT * '
BEING OUT OF THE
JOHN VEST SURVEY, ABSTRACT NO. 1509
CITY OF COPPELL, DALLAS COUNTE, TEXAS
DESCRIPTION, of a 0.183 acre tract of land situated in the John Vest, Survey Abstract No. 1508,
Default County, Texas, said tract being part of the same tract described in deed to R.L.
Robertson L.L.C, recorded in Volume 98170, Page 5904 of the Deed Records of Dallas County,
Texas; said tract also being part of the same tract described in deed to R.L. Robertson L.L.C,
recorded in Volume 98170, Page 5864 of the Deed Records of Dallas County, Texas; said 0.183
acre tract being more particularly described as follows;
COMMENCING, at a "PK" nail found, said point being the intersection of the centerline of Ruby
Road (a variable width public right-of-way) and the west right-of-way line of Coppell Road (a 60
foot wide public right-of-way); said point being the northeast corner of the said Duke-Weeks tract;
THENCE, South 00 Degrees, 27 Minutes, 49 Seconds West, along the said west line of Coppell
Road, a distance of 1336.59 feet to a 3/4-inch spike found at an angle point;
THENCE, South 00 Degrees, 06 Minutes, 12 Seconds West, continuing along the said west line
of Coppell Road, a distance of 466.27 feet to a 1/2-inch iron rod found; said point also being the
northeast comer of said first referenced Robertson tract;
THENCE, North 89 Degrees, 16 Minutes, 47 Seconds West, departing the said west line of
Coppell Road and along the north line of the first referenced Robertson tract, a distance of 356.81
feet to an axle found for comer; said point also being the northwest comer of said Robertson
THENCE, South 04 Degrees, 02 Minutes, 20 Seconds East, along the west line of the Robertson
tract, a distance of 123.59 feet to the POINT OF BEGINNING:
THENCE, South 89 Degrees, 15 Minutes, 47 Seconds East, departing said west line of the first
referenced Robertson tract; a distance of 73.40 feet to a point for comer;,
THENCE, South 44 Degrees, 15 Minutes, 47 Seconds East, a distance of 41.14 feet to a point for
comer;
THENCE, South 00 Degrees. 44 Minutes, 13 Seconds West, a distance of 195.61 feet to a point;
THENCE, South 73 Degrees. 58 Minutes. 01 Seconds East, a distance of 53.38 feet to a point;
said point being in the most southerly east line of the second referenced Robertson tract;
THENCE, South 00 Degrees, 04 Minutes, 32 Seconds West, along said east line of the second
referenced Robertson tract, a distance of 22.37 feet to a point for comer;, said point being in the
south line of the second referenced Robertson tract; said point also being in a north line of a tract
described in deed to Michael S. Chase & Graciela P. Chase, recorded in Volume 95243, Page
2071 of the Deed Records of Dallas County, Texas;
THENCE, North 86 Degrees, 16 Minutes, 50 Seconds West, along said south line of the second
referenced Robertson tract, and said north line of the Chase tract, a distance of 71.85 feet to a
point comer;,
THENCE, North 00 Degrees, 44 Minutes, 13 Seconds East, departing said south line of the
second referenced Robertson tract, a distance of 220.04 feet to a point;
EXHIBIT C
THENCE, North 44 Degrees, 15 Minutes, 47 Seconds West, a distance of 24.57 feet td ~ point;
THENCE, North 89 Degrees, 15 Minutes, 47 Seconds West, a distance of 63.45 feet to a point;
said point being in the said west line of the first referenced Robertson tract;
THENCE, North 04 Degrees, 02 Minutes, 20 Seconds West, along said west line of the first
referenced Robertson tract, a distance of 20.07 feet to the POINT OF BEGINNING.
CONTAINING, 7,967 square feet or 0.183 acres of land, more or less.
2052-101
CJE/Ib
EXHIBIT C
EN(
CONTRACTOR IS TO USE APPROPRIATE
MEASURES TO ENSURE PRESERVATION
OF EXISTING 56' OAK TREE
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EXHIBIT D
Encroachment Area
[The depiction of the Encroachment Area follows this cover page]
EXHIBIT D - Existing Encroachment Area
EXHIBIT D ~
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EXHIBIT