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R2006-056 05-25-06 RESOLUTION NO. R2006-56 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO A ROAD CONSTRUCTION AGREEMENT WITH CBL & ASSOCIATES MANAGEMENT, INC. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Road Construction Agreement by and between the City of Pearland and CBL &Associates Management, Inc., a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest a Road Construction Agreement with CBL & Associates Management, Inc. PASSED,APPROVED and ADOPTED this the 25th day of May , A.D., 2006. c----) 01"1,1eA TOM REID :.= MAYOR _ ATTEST:_ I -- _ / �� C uUNG . ''ITY S CRETARY APPROVED AS TO FORM: 0a.....2, lc CaL- DARRIN M. COKER CITY ATTORNEY EXHIBIT b I, a ROAD CONSTRUCTION AGREEMENT THIS ROAD CONSTRUCTION AGREEMENT (this "Agreement") is made as of the th clay of 2006, by and between The City of Pearland, Texas (the "City") and CBL&Associates Management, Inc. a Delaware corporation, ("CBL"). Recitals A. Peyton Martin, Trustee and the City are parties to that certain Agreement for Exchange of Property (the "Swap Agreement"), which CBL has agreed to join solely to construct a road as set forth herein. Capitalized Terms used but not defined herein shall have the meanings ascribed to them in the Swap Agreement. B. In order to induce the City to enter the Swap Agreement, CBL has agreed to construct a road as set forth herein. C. As the City needs the Road(as defined herein) constructed before the end of 2007, CBL will secure a letter of credit, in the amount equal to One Hundred Ten Percent(110%) of the cost to construct the Road, for the benefit of the City to guarantee CBL's performance of this Agreement and the timely construction of the road. NOW THEREFORE, in consideration of the agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the City and CBL (collectively also called "Parties" and individually a "Party") declare and agree as follows: Agreement 1. Contingent Upon Closing of Swap Agreement. The obligations of CBL set forth in this Agreement are contingent upon the Closing of the transactions contemplated by the Swap Agreement. In the event such Closing has not occurred by August 15, 2006,unless Closing has been extended by mutual agreement of the Parties,then this Agreement shall be null and void and of no further force and effect. 2. Construction of the Road. CBL agrees to construct on or before August 1, 2007,within the public right-of-way known commonly as Kirby Drive, the dedication for which is shown in Volume 24, Page 123, Brazoria County Property Records, at least two (2) lanes of concrete- paved access (the "Road") from the southeast corner of the that certain tract of land located in Brazoria County, Texas,being more particularly described on Exhibit A attached hereto(the "Martin Property")to that certain public right-of-way known commonly as County Road No. 92 (FM 518) (Broadway),the construction of the Road being as set forth on the site plan attached hereto as Exhibit B. The Road shall be built in accordance with the standards for public roadways set forth in the public ordinances of the City of Pearland. HOUSTON\1948875.6 3. Letter of Credit. On or before the closing of the Swap Agreement, CBL shall obtain and deliver to the City a letter of credit in the amount of$767,618.00 (the "Letter of Credit") from • Wells Fargo Bank,N.A. (the "Issuer") for the benefit of the City which may be called by the City only upon the terms and conditions set forth in this Agreement. 4. Deadlines for Construction of the Road. CBL hereby agrees to the following deadlines relating to the construction of the Road(each hereinafter referred to as a "Triggering Event"): (a) CBL shall enter a contract for the construction of the Road on or before March 1, 2007(the "Contract Deadline"). CBL shall cause its contractor to maintain a maintenance bond for the Road for 1 year after completion,such bond naming the City as an additional beneficiary; (b) CBL shall issue a notice to proceed to its contractor for construction of the Road on or before April 2, 2007 (the "Commencement Deadline"); (c) CBL shall have completed at least twenty-five percent(25%) of the construction of the Road on or before May 14,2007, as certified by the City Engineer of the City of Pearland, Texas (the "Engineer") (the "Twenty-Five Percent Completion Deadline") (d) CBL shall have completed at least fifty percent(50%) of the construction of the Road on or before June 15,2007, as certified by the Engineer(the "Fifty Percent Completion Deadline"); (e) CBL shall have completed at least seventy-five percent(75%) of the construction of the Road on or before July 1, 2007, as certified by the Engineer(the "Seventy-Five Percent Completion Deadline"); (f) CBL shall cause the construction of the Road to be substantially complete as certified by the Engineer on or before August 1, 2007 (the "Completion Deadline") In the event that CBL fails to meet any Triggering Event under this Agreement,the City shall have the rights set forth in Section 5 below. Upon fmal completion ofthe Road as certified by the Engineer, the City shall fully release the Letter of Credit to CBL. 5. Rights of the City upon a Triggering Event. Within five (5) days of the failure of CBL to meet a Triggering Event and receipt of the City's notice of such failure, subject to the City's rights under Section 6 hereof, CBL shall issue a demand to the Issuer stating the following: "The undersigned, an authorized representative of CBL & Associates Management,Inc. ("CBL")hereby demands US$[insert amount of drawing] under Wells Fargo Bank,N.A. Letter of Credit No. and certifies that the amount demanded is due to the City of Pearland,Texas (the "City") in connection with the Road Construction Agreement dated [insert date] between the City and CBL&Associates Management, Inc." In the event CBL fails to deliver such notice,the City shall have the right to issue the demand notice to the Issuer. The City shall use the proceeds from the Letter of Credit solely for the HOUSTON\1948875.6 construction of the Road. If, upon completion of the Road,proceeds remain from the disbursement of the Letter of Credit,the City shall immediately refund the remaining proceeds to CBL. Upon meeting a Triggering Event, CBL shall have the right to require the City to instruct the Issuer to reduce the amount of the Letter of Credit to an amount equal to One Hundred Ten Percent(110%) of the remaining cost to complete construction of the Road, and the City shall promptly so instruct the Issuer. 6. Non-waiver. One or more waivers by the City of any Triggering Event under this Agreement shall not be construed as a waiver of a subsequent occurrence of the same Triggering Event. The City shall have the right to toll the meeting of any Triggering Event without waiving it or tolling any subsequent Triggering Event. The City shall have the right to waive any Triggering Event, and such waiver shall not be construed as a waiver of any other subsequent Triggering Event. 7. Force Majeure. Notwithstanding anything in this Agreement to the contrary, in the event CBL misses either the Contract Deadline,the Commencement Deadline, the Twenty-Five Percent Completion Deadline,the Fifty Percent Completion Deadline, the Seventy-Five Percent Completion Deadline or the Completion Deadline due to a Force Majeure(as defined below), such missed deadline or deadlines shall be tolled until CBL is able to continue its efforts to meet such deadline by the amount of time lost on account of such Force Majeure, and the deadlines for each subsequent Triggering Event extended accordingly. "Force Majeure" shall mean any delay caused, notwithstanding good faith efforts by CBL to avoid such delay,by acts of God, war, terrorism, casualty,unavailability of material or labor, strikes, governmental moratorium,or material default under this Agreement or delay by the City(but not the unavailability of financing or funding or the inability to procure contracts unless related to an act or acts of terrorism);provided,however, that no period of Force Majeure shall be deemed to occur unless CBL has,within ten(10) days after the commencement of such period, given written notice to the City of such commencement of such period. 8. Notices. All notices, requests or permissions required or permitted to be given to either the City or CBL under the terms of this Agreement shall be sufficient if they are in writing and (a)mailed registered or certified mail, return receipt requested, (b) delivered in person, or (c) sent by telecopy or telefax, as follows: To CBL: Jeff Brewer c/o CBL&Associates Properties, Inc. 2030 Hamilton Place Blvd., Suite 500 Chattanooga,Tennessee 37421 Fax: 423-490-8602 With a copy to: Victoria Berghel c/o CBL&Associates Properties, Inc. 2030 Hamilton Place Blvd., Suite 500 Chattanooga,Tennessee 37421 Fax: 423-490-4388 To the City: The City of Pearland Attn: City Manager HOUSTON\1948875.6 3519 Liberty Drive Pearland, Texas 77581 Fax: 281-652-1708 With a copy to: The City of Pearland Attn: City Attorney 3519 Liberty Drive Pearland, Texas 77581 Mailed notices shall be deemed delivered and effective three(3) days following the date when placed in the United States mail, certified or registered mail,return receipt requested,postage prepaid. All notices delivered by overnight courier,by telecopy or telefax, or in person shall be deemed delivered upon receipt at the above addresses. 9. Expiration of Letter of Credit. The City acknowledges that the Letter of Credit will expire one(1)year from the date of its issuance. CBL covenants and agrees to obtain and deliver to the City a replacement letter of credit at or prior to the expiration of the original Letter of Credit(the "Replacement Letter of Credit"). It shall be a Triggering Event under this Agreement if CBL fails to deliver the Replacement Letter of Credit in an amount equal to 110% of the remaining cost to complete construction of the Road at least ten(10) days prior to the expiration of the original Letter of Credit. 9. Miscellaneous. (a) This Agreement shall be construed and interpreted in accordance with the laws of the State of Texas. (b) Time is of the essence as to all matters contained in this Agreement. (c) If the final day of any time period or limitation set out in any provision of this Agreement falls on a Saturday, Sunday, or legal holiday recognized by the United States government or the State of Texas, then and in such event the time of such period or limitation shall be extended to the next day which is not a Saturday, Sunday or such legal holiday. (d) This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original,but such counterparts shall together constitute one and the same instrument. (e) This Agreement may not be modified or amended except by a subsequent agreement in writing signed by both the City and CBL. The City and CBL may waive any of the conditions herein or any of the obligations of the other party hereunder,but any such waiver shall be effective only if in writing and signed by the party waiving such condition or obligation. (g) This Agreement, constitutes the entire agreement and understanding between the parties hereto and supersedes all prior and contemporaneous agreements and understandings of the parties in connection therewith. No statements, agreements or understandings,representations,warranties or conditions not expressed in this Agreement HOUSTON\1948875.6 shall be binding upon the parties hereto, or shall be effective to interpret, change or restrict the provisions of this Agreement unless such is in writing signed by the party against whom enforcement thereof is sought. (h) If any provision of this Agreement or application to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent,the remainder of this Agreement or the application of such provision to such person or circumstances, other than those as to which it is so determined invalid or unenforceable, shall not be affected thereby, and each provision hereof shall be valid and shall be enforced to the fullest extent permitted by law. (i) The captions in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Agreement or the scope or content of any of its provisions. (j) The Parties agree that any suit arising out of a controversy concerning the rights and obligations of the Parties under this Agreement shall be filed in Brazoria County, Texas. HOUSTON\1948875.6 IN WITNESS WHEREOF, the Parties have signed this instrument as of the date noted above. THE CITY THE CITY OF PEARLAND, TEXAS By: Name: Title: CBL CBL AND ASSOCIATES MANAGEMENT, INC., a Delaware corporation By: Name: Title: HOUSTON\1948875.6 Exhibit A Martin Property DESCRIPTION OF A 4.8705 ACRE TRACT OUT OF H.T. &B.R.R. CO. SURVEY A-300, SECTION 81 BRAZORIA COUNTY,TEXAS Being 4.8705 acres (212,158 square feet) of land out of and part of an 18.251 acre parcel being the residue of a called 154.0026 acre tract described in deed to Peyton Martin, Trustee recorded under File Number 91-000518 of the Official Records of Brazoria County (B.C.O.R),located in the H.T. &B.R.R. CO. Survey, Abstract 300, Section 81 Brazoria County, Texas and being more particularly described by metes and bounds as follows: COMMENCING a 5/8-inch iron rod with cap stamped Carter&Burgess set for the southeast corner of said 18.251 acre tract for the POINT OF BEGINNING of the herein described tract; THENCE South 86 degrees 40 minutes 49 seconds West,with the north line of Southgate, Section One, a distance of 625.90 feet to a 5/8-inch iron rod with cap stamped Carter&Burgess set for the northeast corner of Southgate, Section One, and the east line of a called 20.0 acre tract described in deed to William C. Walsh, recorded under File Number 96-008397 (B.C.O.R); THENCE North 03 degrees 18 minutes 55 seconds West, with the west line of said 20.0 acre tract and the west line of a called Lot 48 described in deed to William C. Walsh,recorded under File Number 96-008394 (B.C.O.R), at a distance of 300.00 feet to a point for a corner; THENCE North 86 degrees 40 minutes 49 seconds East, a distance of 775.59 feet to a point on the west right of way line of Kirby Drive for the northeast corner of the herein described tract, said point also being the point on a curve to the right. Said curve having a radius of 1,550.00 feet, a central angle of 10 degrees 45 minutes 34 seconds, and a chord bearing and distance of South 22 degrees 29 minutes 03 seconds West; THENCE along the arc of said curve and said right of way, a distance of 291.07 feet to a set 5/8- inch iron rod with cap stamped Carter&Burgess for the point of tangency; THENCE South 27 degrees 51 minutes 50 seconds West,with the west line of said right of way, a distance of 44.81 feet to the POINT OF BEGINNING and containing 4.8705 acres of land more or less. MB Written 03/31/06 Revised 04/06/06 LDJ/Idj 031657.000 HOUSTON\1948875.6 Exhibit B Site Plan of the Road HOUSTON\I948875.6 F.M. 518 BROADWAY 5 8646'15'W—872.99' flF PARCEL BC-5 8 1 _ls 1 1.403 ACRES �. m I II �'� N 8648'15'E-872.99' 1 I I I I I N N � I II 1 1 I N .7 I E� 15cale 1'=100' I II W.C. PROPERTIES I ITI I m CALLED 9.9200 ACRES I I I1 VI 1 Original Area 9.920 Acres I I . ht Of W Taldn 1.403 ores 1 GI 1 I i 1 I 1 I II 1 II I I I I II I _..._.___--. N 8641'05'E—872 II99' I I li I I I III 1. • I 1 ui I 1 i i II II ' Ci 1 II I IQ t I 1 13 3805 ACRES m' II 582,854 SO, FT. Xl l 1 I 1 1 (Remainder) I I 1 LOCATION OF PROPOSED /I I I I ROADWAY IMPROVEMENTS III 1 _ �� 1 - - N 8640'49'E-775.59' ,,.� — I I I m , ,,,, , , 1s 1 1 `` / / 1 1 4.8705 ACRES GROSS F.,— // I� I 4.1357 ACRES NET ICII IO. /" / I hN // II I I _ y��rb I I I —.—.1 25'S7WN 3lER FA`tVQll p I 'r'S 8640'49'W-62590' .! , h° , 1 I / y / Drawn: Idj Dote: 05 /08/06 Roadway Improvements Cater'Burgess & BURGESS, INC. Revi 031657.000 Exhibit CARTER WTE WOVE.SUITEE S, Revised: G HOUSTON.TX 77007-5842 711889.7600 713869.5502 FAX HOUST AGREEMENT FOR EXCHANGE OF PROPERTY THIS AGREEMENT FOR EXCHANGE OF PROPERTY (this "Agreement") is entered into by and between The City of Pearland, Texas (the "City"), and Peyton Martin, Trustee, ("Martin"), as of the Effective Date (as hereinafter defined) and joined by CBL & Associates Management,Inc. ("CBL"), (collectively, the "Parties"). RECITALS WHEREAS, the City desires to exchange the City Property for the property owned by Martin, the "Martin Property" (as defined herein), the dedication of the Martin Dedication Property (as defined herein), the dedication of the Walsh Dedication Property(as defined herein) and the road to be constructed by CBL described further in Section 7 herein, because the Martin Property, accompanied by the road, will have the adequate public road access necessary to provide the fire station and water tower contemplated for construction by the City (the "Facilities"); and WHEREAS, pursuant to this Agreement, the City shall acquire the Martin Property with the accompanying road in order to have property with which the City can provide the public benefit of enhanced City services through the construction of the Facilities with adequate public road access; and NOW, THEREFORE, in consideration of the foregoing, of the covenants, promises and undertakings set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City, Martin and CBL agree as follows: 1. Findings and Description of Property Exchange. The City is the owner of approximately 8.999 acres of land in Brazoria County, Texas, more particularly described on Exhibit "A" attached hereto, together with all appurtenances thereto (the "City Property"). Martin is the owner of approximately 4.8705 acres of land in Brazoria County, Texas, more particularly described on Exhibit "B" attached hereto, together will all appurtenances thereto, which abuts the City Property (the "Martin Property"). The City has determined and the Parties acknowledge that the City Property lacks sufficient access to the public roads necessary for the Facilities contemplated for construction by the City. Accordingly, the City desires to exchange the City Property for the Martin Property, including the construction of the road described in Section 7 herein, in order to utilize the Martin Property for the Facilities to increase the benefit to the public of providing enhanced emergency services and utilities that could not otherwise be provided on the City Property due to insufficient road access. Martin and the City are entering this Agreement to exchange the City Property for the Martin Property. Throughout this Agreement, any references to "Purchaser" shall mean both Martin in its capacity as the purchaser of the City Property and the City in its capacity as the purchaser of the Martin Property. Throughout this Agreement, any references to "Seller" shall mean the City in its capacity as the seller of the City Property and shall mean Martin in its capacity as the seller of the Martin Property. Throughout this Agreement, the term "Property" shall mean both the City Property where the City is Seller and Martin is Purchaser and the Martin Property where Martin is Seller and the City is Purchaser. HOUSTON\1946032.14 2. Agreement. For and in consideration of the exchange of the Property set forth in this Agreement and of the payment by Purchaser to Seller of One Hundred and 0/100 Dollars ($100.00) in cash as independent option consideration(the "Independent Option Consideration"), which shall be nonrefundable to Purchaser, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase and accept conveyance of, the Property pursuant to the terms and conditions herein set forth. 3. Purchaser's Investigation. Purchaser shall have the period (the "Contingency Period") commencing as of the Effective Date and ending as of the Close of Business on the thirtieth (30th) day following the Effective Date, within which to conduct such due diligence investigations regarding the Property as Purchaser shall desire, including but not limited to, those investigations provided for in, or relating to the information referred to in, the further provisions of this Section 3. (a) Seller's Title. As soon as reasonably possible following the Effective Date, Seller, at its sole cost and expense, shall furnish to Purchaser (i) a Commitment for Title Insurance covering the Property (the "Commitment") prepared by the Alamo Title Co., whose address is 5005 Riverway, Suite 120, Houston, Texas 77056 Attention: Basil Macdonald (the "Title Company"), addressed to Purchaser, pursuant to which the Title Company shall commit to issue to Purchaser on behalf of a title insurer authorized to do business in Texas and acceptable to Purchaser in its sole discretion, a Texas Owner's Policy of Title Insurance ("Title Policy") in the form prescribed by the Texas State Board of Insurance and as further provided herein, setting forth (A)the current status of title to the Property and showing all liens, claims, encumbrances, easements, right-of-ways, encroachments, restrictions, reservations, and other matters affecting the Property, and (B) the requirements pursuant to which the Title Company agrees to issue at the Closing an Owner's Policy of Title Insurance for the Property; (b) Survey. Martin shall, at its sole cost and expense to obtain and shall deliver to the City and the Title Company a current on the ground, staked survey, prepared by a surveyor licensed by the State of Texas and acceptable to the Purchaser and its counsel and the Title Company, describing the City Property and the Martin Property (in each case, the "Survey"). The Survey shall certify to Seller, Purchaser and the Title Company that it conforms to the standards and specifications of the Texas Society of Professional Surveyors for a Category 1A, Condition II Survey. Purchaser shall provide a copy of such Survey to Seller. (c) Documents Relating to the Property. Within five (5) business days following execution of this Agreement, Seller, at its sole cost and expense, shall make available, or cause to be made available, to Purchaser true and correct copies of the following documents and materials (collectively, the "Due Diligence Materials"): (i) the most recent real estate tax statements with respect to the Property; (ii) Any existing environmental reports, any engineering or other technical reports on the soil or subsoil condition or topography of the Property or evidencing the existence or non-existence of faults or other geological peculiarities; HOUSTON\1946032.14 -2- (iii) such other documents and information as Purchaser may reasonably from time to time request, which are in Seller's possession or under its direction and control, relating to the Property; and To the extent allowed by law, all of the Due Diligence Materials are confidential and shall not be distributed or disclosed by Purchaser to any person or entity not employed or engaged by Purchaser to assist with the purchase of the Property. If the purchase and sale of the Property fails to close for any reason whatsoever, Purchaser shall, within thirty (30) days of the termination of this Agreement, return to Seller all of the Due Diligence Materials (together with all copies thereof) which Seller has delivered to Purchaser in accordance with this Section 3(c). (d) On-Site Inspections. During the Contingency Period and at all times thereafter prior to the Closing or the earlier termination of this Agreement, Purchaser shall have the right, at Purchaser's expense, to conduct all on-site inspections of the Property determined by Purchaser to be necessary or appropriate to determine whether the Property is suitable for Purchaser's intended use, including, without limitation, the testing and inspection of the Property (and its subsurface) for any environmental contamination and for its suitability for development, the taking of ground water and core samples, soil tests, topographical and fault studies, and all other surveys, studies, tests and analysis.desired by Purchaser. Seller hereby grants to Purchaser and its designated agents or contractors the right to enter upon the Property upon reasonable verbal or written notice to perform such inspections, tests, and other studies; provided, however, that (i) if the Closing does not occur hereunder, Purchaser shall repair any physical damage to the Property resulting therefrom and (ii) to the extent allowed by law, Purchaser shall indemnify and hold Seller harmless from and against any damage, claim, cause of action, liability, cost (including, without limitation, reasonable attorneys' fees, and court costs) or other obligation caused by Purchaser's entry upon the Property. The obligation of Purchaser to indemnify Seller under this Section 3(d) shall survive the Closing or the earlier termination of this Agreement. (e) Notice of Objections. On or before the Close of Business on the last day of the Contingency Period, Purchaser shall deliver to Seller its written objections ("Purchaser's Objections") to (i) any matters reflected on the Commitment or the Survey and (ii) any matters revealed by a test or inspection of the Property, which would materially interfere with Purchaser's intended use of the Property. Seller shall have the period ("Seller's Cure Period") commencing with Seller's receipt of any notice of Purchaser's Objections, and extending until the Close of Business on the date which is ten(10) days following the expiration of the Contingency Period in which to cure or remove Purchaser's Objections, at Seller's sole cost and expense. Seller agrees to use reasonable efforts to cure any of Purchaser's Objections and shall cure, remove, or pay off at or before Closing any current assessments affecting the Property and all mortgages, deeds of trust, judgment liens, mechanics and materialmen's liens, and similar liens against the Property. (f) Purchaser's Termination Rights. If Seller fails for any reason to cure or satisfy any of Purchaser's Objections, in Purchaser's sole discretion, on or before the expiration of Seller's Cure Period, Purchaser shall have the option, on or before the date which is ten (10) days from the date Seller's Cure Period expires, as Purchaser's sole and exclusive remedies, to either: (A) accept conveyance of title to the Property subject to such uncured matters and proceed under the terms of this Agreement, or (B) give written notice to Seller that Purchaser HOUSTON\1946032.14 -3- elects to terminate this Agreement, in which event the Independent Option Consideration shall be retained by Seller and neither party shall have any further rights, liabilities, or obligations hereunder, other than those provisions hereof that are expressly to survive any such termination. If Purchaser fails to notify Seller that it has elected one of the foregoing options on or before the expiration of such ten (10) day period, Purchaser shall be deemed to have elected to accept such uncured matters. 4. Warranties and Representations. Seller makes the following representations and warranties, all of which shall be true and correct as of the Effective Date and as of the Closing Date (as hereinafter defined), but shall not survive the Closing: (a) Seller has good, indefeasible, and insurable fee simple title in and to the Property; (b) Seller has not granted to any person, firm, or entity, other than Purchaser, any right to purchase the Property or any portion thereof which remains outstanding as of the Effective Date or which shall remain outstanding as of the date the same is conveyed to Purchaser, and there are no parties in possession of any portion of the Property; (c) there are no leases, property agreements, plans, warranties, permits, intangibles, or other documents or agreements relating to the ownership, operation or use of the Property other than those disclosed to Purchaser by Seller pursuant to Sections 3(a), (b) or (c) above; (d) there is no litigation pending, threatened, affecting or relating to the Property; (e) Seller has received no notice (and has no other knowledge) of any pending or threatened condemnation or similar proceedings affecting the Property; (f) except as disclosed in the Due Diligence Materials, to Seller's knowledge, the Property has never been the site of any activity that would lead to a present violation of any applicable environmental law and no hazardous substance, as that term is defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, has been released, deposited, discharged, stored or buried in, on or under the Property in quantities or locations that would require remedial action under any applicable environmental law; and (g) Each of the City and Martin has full power and authority to enter into this Agreement and to assume and perform all of its obligations hereunder, and the execution and delivery of this Agreement and the performance by Seller of its obligations hereunder requires no further action or approval in order to constitute this Agreement as a binding and enforceable obligation of Seller. After the Effective Date and until the Closing Date, Seller shall keep Purchaser fully informed of all developments known to Seller that would cause any of Seller's representations contained in this Agreement to be no longer accurate in any material respect. If, prior to Closing, Purchaser discovers that any of the representations and warranties made by Seller in this Agreement were when made, or have subsequently become, materially false, and Seller does not cause at its HOUSTON\1946032.14 -4- expense, as to any false statement, a change in the underlying facts to make such statement no longer materially false, then Purchaser shall have the option to either (i) waive objection to such false statement and proceed to the Closing; or (ii) cancel this Agreement, and thereafter neither party shall have any further obligations to the other hereunder(except with respect to obligations that are expressly to survive such termination). 5. Warranties and Representations of Purchaser. Purchaser represents and warrants to Seller that Purchaser has been duly authorized to enter into this Agreement on the terms and conditions of this Agreement and that this Agreement is fully binding and enforceable against Purchaser. 6. Additional Covenants. Until the Closing, Seller covenants and agrees as follows: (a) Seller shall not commit any waste of the Property and shall keep the Property in substantially the same condition as its current condition, ordinary wear and tear excepted; and (b) Seller will promptly advise Purchaser in writing of any material changes, additions, deletions, or modifications in or to any of the Due Diligence Materials to be delivered to Purchaser pursuant to Section 5 above, and shall provide Purchaser with true, correct and complete copies of such changes, additions, deletions or modifications. (c) The City will not cause that certain public right-of-way known as County Road 896 (Glossop Road), as shown in Volume 2, Page 98 of the Brazoria County Map Records to be abandoned and closed until it has received written notice from Martin or the purchaser of its Property or its successors and assigns that said right-of-way can be abandoned and closed. This covenant shall expressly survive Closing. 7. Covenant of CBL. CBL covenants and agrees to construct to City standards on or before August 1, 2007, within the public right-of-way known commonly as Kirby Drive, the dedication for which is shown in Volume 24, Page 123, Brazoria County Property Records, at least two (2) lanes of concrete-paved access from the southeast corner of the Martin Property to that certain public right-of-way known commonly as County Road No. 92 (FM 518) (Broadway) in order to provide sufficient access to public roads from the Martin Property that the City does not have for the City Property. CBL and the City shall enter a roadway construction agreement (the "Roadway Construction Agreement") in the form attached hereto as Exhibit "F" secured by a letter of credit in an amount equal to $767,618.00 8. Condition to Closing. (a) It shall be a condition to Closing that the 1.414 acre tract of land in Brazoria County, Texas (the "Walsh Dedication Property") more particularly described on Exhibit "D" attached hereto has been deeded to the public as an addition to the public right of way known commonly as County Road No. 92 (FM 518) (Broadway). (b) It shall be a condition to Closing that CBL and the City have entered the Roadway Construction Agreement and obtained the letter of credit discussed in Section 7. HOUSTON\1946032.14 -5- (c) It shall be a condition to Closing that Martin is prepared to dedicate the Martin Dedication Property as defined and discussed in Section 9(c) herein. 9. Closing. (a) The consummation of the exchange of the City Property and the Martin Property (the "Closing") shall take place sixty (60) days from the Effective Date of this Agreement at a mutually agreed upon time and place. (b) At the Closing, each Seller, at its sole cost and expense, shall deliver to each Purchaser(or to the Title Company in escrow for delivery to Purchaser upon consummation of the purchase and sale provided for herein) the following closing documents: (i) A Special Warranty Deed for the Property (the "Deed") executed by the Seller in the form attached hereto as Exhibit "E", but properly completed in accordance with this Agreement, duly acknowledged and in form for recording, which Deed shall convey to Purchaser good, indefeasible and insurable fee simple title to the Property, subject to all matters affecting the Property as shown in the Property Records of • Brazoria County, Texas and all matters that would be revealed by a current, on the ground survey of the Property; (ii) The Title Insurance Policy; (iii) The Seller's affidavit (if required) in a form reasonably acceptable to Purchaser, as required by Section 1445 of the Internal Revenue Code; (iv) Possession of the Property to Purchaser in accordance with the terms of this Agreement; (v) Tax certificates evidencing the payment of all real property taxes assessed against the Property through and including the year prior to the Closing; (vi) Evidence, in form and content satisfactory to Purchaser and the Title Company, that the persons executing the instruments delivered at Closing on behalf of the Seller have the authority to bind the Seller to perform its obligations set forth therein; and (vii) Such other documents and items as are contemplated to be delivered by the Seller to Purchaser, and by Purchaser to the Seller, at the Closing pursuant to the other provisions of this Agreement. (c) At Closing, Martin also agrees to dedicate to the public as an addition to the public right of way known commonly as County Road No. 92 (FM 518) (Broadway) those certain 1.271 acre and 0.635 acre tracts of land in Brazoria County Texas (collectively, the "Martin Dedication Property") more particularly described on Exhibit"C" attached hereto. (d) After the Closing, neither party hereto shall have any further rights, duties or obligations to the other pursuant to this Agreement other than those arising pursuant to the HOUSTON\1946032.14 -6- provisions hereof that are expressly to survive the Closing and those arising pursuant to the documents executed and delivered at the Closing. 10. Closing Costs. Martin agrees to pay for the cost of the Commitment, any updates to the Commitment; the base premium for issuance to Martin or the City, as the case may be, of the Title Policy in the forms contemplated hereunder; all charges for tax certificates; all charges for the preparation and recordation of any releases or instruments required to clear title to the Martin Property and the City Property for conveyance in accordance with the provisions of this Agreement; the cost of any Uniform Commercial Code searches and any updates thereto; all premiums for the survey deletion and any additional title endorsements; the Survey, if any; and all charges for the recordation of the instruments conveying title to the City Property and the Martin Property and dedicating the Martin Dedication Property. All other costs, charges and expenses in connection with each closing shall be allocated between Purchaser and Seller as specified in this Agreement, or absent such specification, in accordance with the customary practices in Brazoria County, Texas. 11. Prorations and Credits to be Made at Closing. All normal and customarily proratable items, including without limitation, real estate taxes, assessments, utility bills, and insurance premiums, shall be prorated as of midnight of the day immediately preceding the Closing Date, Seller being charged and credited for all of the same up to such date and Purchaser being charged and credited for all of same on and after the Closing Date. If the actual amounts to be prorated are not known as of the Closing Date, the prorations shall be made on the basis of the best evidence then available, and thereafter, when actual figures are received, a cash settlement shall be made between Seller and Purchaser. All deposits shall be credited against the Consideration, in lieu of assigning such deposits to Purchaser. The provisions of this Section 9 shall survive the Closing. 12. Remedies. (a) In the event the purchase and sale of the Property is not consummated because of default by Purchaser, then Seller shall have any and all remedies available to it at law or equity, including, but not limited to, the remedy to enforce specific performance of this Agreement. (b) In the event the purchase and sale of the Property is not consummated because of a default by Seller, then Purchaser shall have any and all remedies available to it at law or equity, including, but not limited to, the remedy to enforce specific performance of this Agreement. (c) Should either party employ an attorney to enforce any provisions of this Agreement or any other document executed by such party in connection herewith, the non- prevailing party in any such action shall pay to the prevailing party all reasonable attorney's fees expended or incurred by,the prevailing party in connection therewith. The provisions of this Section 12 shall survive the Closing or the earlier termination of this Agreement. 13. Notices. All notices, requests or permissions required or permitted to be given to either the City,Martin or CBL under the terms of this Agreement shall be sufficient if they are in HOUSTON\1946032.14 -7- writing and (a) mailed registered or certified mail, return receipt requested, (b) delivered in person, or(c) sent by telecopy or telefax, as follows: To Martin: Peyton Martin,Trustee 310 Morton Street, Suite 280 Richmond, Texas 77469 Fax No. 281-342-8169 with a copy to: Michael Noonan 14100 Southwest Freeway#220 Sugar Land,Texas 77478 Fax No.: 281-277-4111 To CBL: Jeff Brewer CBL &Associates Properties, Inc. 2030 Hamilton Place Blvd., Suite 500 Chattanooga, Tennessee 37421 Fax: 423-490-8602 with a copy to: Victoria Berghel CBL&Associates Properties, Inc. 2030 Hamilton Place Blvd., Suite 500 Chattanooga,Tennessee 37421 Fax: 423-490-4388 To the City: The City of Pearland Attn: City Manager 3519 Liberty Drive Pearland, Texas 77581 Fax: 281-652-1708 With a copy to: The City of Pearland Attn: City Attorney 3519 Liberty Drive Pearland, Texas 77581 Mailed notices shall be deemed delivered and effective three (3) days following the date when placed in the United States mail, certified or registered mail, return receipt requested, postage prepaid. All notices delivered by overnight courier, by telecopy or telefax, or in person shall be deemed delivered upon receipt at the above addresses. 14. Assignment. Neither party may assign this Agreement without the prior written consent of the other party to this Agreement. This Agreement shall inure to the benefit of and be binding on the parties hereto and their respective heirs, legal representatives, successors, and assigns. This Agreement is for the sole benefit of Seller and Buyer, and no third party is intended to be a beneficiary of this Agreement. Notwithstanding the foregoing, the City acknowledges that Martin may assign its post-closing obligations set forth herein to a third party, HOUSTON\1946032.14 -8- provided that Martin shall not relieve himself of any liability for such obligations by making such an assignment. 15. Effective Date. The "Effective Date" of this Agreement shall be the date of acknowledgment of receipt of a fully executed copy of this Agreement by the Title Company as provided below. The offer evidenced by the execution hereof by either party hereto shall be deemed to be withdrawn if the Effective Date of this Agreement has not occurred within ten(10) days after the date such party signs this Agreement. 16. Miscellaneous. (a) This Agreement shall be construed and interpreted in accordance with the laws of the State of Texas. (b) Time is of the essence as to all matters contained in this Agreement. (c) If the final day of any time period or limitation set out in any provision of this Agreement falls on a Saturday, Sunday, or legal holiday recognized by the United States government or the State of Texas, then and in such event the time of such period or limitation shall be extended to the next day which is not a Saturday, Sunday or such legal holiday. (d) This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. (e) This Agreement may not be modified or amended except by a subsequent agreement in writing signed by both the City and Martin. The City and Martin may waive any of the conditions herein or any of the obligations of the other party hereunder, but any such waiver shall be effective only if in writing and signed by the party waiving such condition or obligation. (g) This Agreement, including the exhibits, schedules, and attachments attached thereto (all of which shall be deemed incorporated into this Agreement by reference), constitutes the entire agreement and understanding between the parties hereto and supersedes all prior and contemporaneous agreements and understandings of the parties in connection therewith. No statements, agreements or understandings, representations, warranties or conditions not expressed in this Agreement shall be binding upon the parties hereto, or shall be effective to interpret, change or restrict the provisions of this Agreement unless such is in writing signed by the party against whom enforcement thereof is sought. (h) If any provision of this Agreement or application to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances, other than those as to which it is so determined invalid or unenforceable, shall not be affected thereby, and each provision hereof shall be valid and shall be enforced to the fullest extent permitted by law. HOUSTON\1946032.14 -9- (i) The captions in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Agreement or the scope or content of any of its provisions. (j) All exhibits described herein and attached hereto are fully incorporated into this Agreement by this reference for all purposes. (k) The Parties agree that any suit arising out of or relating to this Agreement shall be filed in Brazoria County, Texas. HOUSTON\1946032.14 -10- IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date set forth below, but shall be effective as of the Effective Date. THE CITY: THE CITY OF PEARLAND, TEXAS Date: , 2006 By: Name: Title: MARTIN: Date: , 2006 PEYTON MARTIN, TRUSTEE HOUSTON\1946032.14 -11- IN WITNESS WHEREOF, this Agreement has been joined by CBL solely for the purpose of evidencing its agreement to the provisions of Section 7. CBL: CBL & ASSOCIATES MANAGEMENT, INC. Date: , 2006 By: Name: Title: HOUSTON\1946032.14 -12- • The undersigned, as escrow agent, hereby acknowledges receipt of a fully executed original of this Agreement. ALAMO TITLE INSURANCE COMPANY Date: , 2006 By: Name: Title: HOUSTON\1946032.14 EXHIBIT "A" Legal Description of the City Property All of that certain 8.999 acre tract of land located in Brazoria County, Texas, more particularly described under File No. 2005-010827 in the Brazoria County Official Records. HOUSTON\1946032.14 EXHIBIT "B" Legal Description of the Martin Property DESCRIPTION OF A 4.8705 ACRE TRACT OUT OF H.T. & B.R.R. CO. SURVEY A-300, SECTION 81 BRAZORIA COUNTY, TEXAS Being 4.8705 acres (212,158 square feet) of land out of and part of an 18.251 acre parcel being the residue of a called 154.0026 acre tract described in deed to Peyton Martin, Trustee recorded under File Number 91-000518 of the Official Records of Brazoria County(B.C.O.R), located in the H.T. &B.R.R. CO. Survey, Abstract 300, Section 81 Brazoria County, Texas and being more particularly described by metes and bounds as follows: COMMENCING a 5/8-inch iron rod with cap stamped Carter&Burgess set for the southeast corner of said 18.251 acre tract for the POINT OF BEGINNING of the herein described tract; THENCE South 86 degrees 40 minutes 49 seconds West, with the north line of Southgate, Section One, a distance of 625.90 feet to a 5/8-inch iron rod with cap stamped Carter&Burgess set for the northeast corner of Southgate, Section One, and the east line of a called 20.0 acre tract described in deed to William C. Walsh,recorded under File Number 96-008397 (B.C.O.R); THENCE North 03 degrees 18 minutes 55 seconds West, with the west line of said 20.0 acre tract and the west line of a called Lot 48 described in deed to William C. Walsh,recorded under File Number 96-008394 (B.C.O.R), at a distance of 300.00 feet to a point for a corner; THENCE North 86 degrees 40 minutes 49 seconds East, a distance of 775.59 feet to a point on the west right of way line of Kirby Drive for the northeast corner of the herein described tract, said point also being the point on a curve to the right. Said curve having a radius of 1,550.00 feet, a central angle of 10 degrees 45 minutes 34 seconds, and a chord bearing and distance of South 22 degrees 29 minutes 03 seconds West; THENCE along the arc of said curve and said right of way, a distance of 291.07 feet to a set 5/8- inch iron rod with cap stamped Carter&Burgess for the point of tangency; THENCE South 27 degrees 51 minutes 50 seconds West,with the west line of said right of way, a distance of 44.81 feet to the POINT OF BEGINNING and containing 4.8705 acres of land more or less. M/B Written 03/31/06 Revised 04/06/06 LDJ/ldj 031657.000 HOUSTON\1946032.14 EXHIBIT "C" Legal Description of Martin Dedication Property PARCEL BC73 CY) • METES AND BOUNDS DESCRIPTION 1.271 ACRES.OUT OF LOT l l-,SECTION 81 ALLISON RICHEY GULF COAST HOME.COMPANY SUBDIVISION PEARLAND,BRAZORIA COUNTY,TEXAS All that certain 1.271 acres out of Lot 11,.Section 81, Allison.-Richey Gulf-Coast.Home Company Subdivision according to the'plat thereof:filed in Volume 2,Page 98'.Brazoria County Plat Records and out of that certain.deed dated 12-28-1990'from Bancplus Federal Sayings Association to Peyton:Martin, Trustee filed in Volume (91) 865, Page 685 Brazoria County Official. Records and being more particularly described by metes and bounds as follows (bearings based on Texas Coordinate System of 1983,South Central:Zone); Commencing at a found disc in concrete stamped City of Pearland GPS Monument No.9 from which City of Pearland GPS Monument No. 10 bears S 08° 12' 14" E —2,401-.89' from said point Thence S 75° 14' 08'.'W—2,135.07' to a point marking the POINT OF BEGINNING of herein described tract and marking the northeast corner of said Lot 11; 1. Thence S 03° 10' 03"E—70.00'with the east line of said'Lot 11 to a set P.K.nail in asphalt for corner; 2. Thence S 86° 46' 15" W—790.78' to a set 5/8" iron rod with cap (stamped C.L. DAVIS- RPLS 4464)for corner; 3. Thence N 03° 13' 45"W.—70.00' with the east-line of that certain tract described in a deed dated 07-03-2002 from Peyton Martin, Trustee to Lingo Southgate,Ltd. as filed in Official Records of Real Property of Brazoria County.at Clerk's File Number 02=041090 to a point for corner; 4. Thence N 86°46' 15"E—790.85'with the south line of that•.certain'50'right-of-way strip as described in that certain-deed as filed,in Official Records of Real Property of Brazoria County at Clerk's File Number 2004-051264 to the POINT OF BEGINNING and containing 1.271 acres(55,357 square feet)of land more Or less. This metes and bounds description is accompanied by a separate plat, drawing or_exhibit.per Texas Board of Professional Land Surveyor's "General Rules of Procedures and Practices" Section 663.19(9). Compiled by: C.L.Davis&Company Job Number: 11-421-43 parcel BC 3 M&B.doc 11-10-2004 11-421-43 parcel BC 3 M&B.doc HOUSTON\1946032.14 PARCEL BC-1 . r/P7 METES AND BOUNDS DESCRIPTION ` 0.635 ACRE OUT OF LOT31,SECTION 81 ALLISON RICHEY GULF COAST HOME COMPANY SUBDIVISION PEARLAND;BRAZORIA COUNTY,TEXAS All that.certain 0:635 acre out of Lot 31,:Section:.81,Allison—Richey Gulf Coast Home Company Subdivision according to the plat thereof filed in Volume 2, Page 98 Brazoria County Plat Records and being.part of that certain tract described in:a deed dated 12-28-1990 from Bancplus Federal Savings Association to Peyton Martin, Trustee filed.in Volume (91) 865, Page 685 Brazoria County Official Records and being more particularly described by metes and bounds as follows(bearings based on Texas Coordinate System of 1983,South Central Zone); Commencing at a found disc in concrete.stamped City of Pearland GPS Monument No. 9 from which City of Pearland GPS Monument No. 10 bears S 08° 12' 14" E —2,401.89' from said point; Thence S 59° 25' 50" W— 929.62'.to a point marking the POINT OF BEGINNING of herein described tract and:marking the intersection of the north line of said Peyton Martin tract and the most west right-of-way line of State Highway 288(right-of-way varies)as established by that certain deed filed in Volume 1077,Page 126 Brazoria County Deed Records; 1. Thence the following 3 courses with the most westerly right-of-way line of said State Highway 288; 2. Thence S 03°26'28"E 60.53'to a found concrete monument for corner; 3. Thence N 87° 00' 37"E-.63.31'to a found concrete monument for corner; 4. Thence S 49° 03' 37"E-13.21'to a set 5/8"iron rod with cap(stamped C.L.DAVIS-RPLS 4464)for corner; 5. Thence S 86° 46' 15" W—459.25' to a set.5/8" iron rod with cap (stamped C.L. DAVIS- RPLS 4464)for corner; 6. Thence N 03° 10' 03"W—70.00' with the east line of that certain tract described in a deed dated 12-11-200.1 from James H. Oreschnigg to Norlean N. Hulgan as filed in Official Records of Real Property of Brazoria County at Clerk's File Number 01-056527 to a point for corner; 7. Thence N 86° 46' 1:5" E—38617' with the north line of said Peyton Martin tract and the north line of said Lot 31 to the POINT OF BEGINNING and:containing.0.635 acre(27,678 square feet)of land more or less. This metes and bounds description is accompanied by a separate plat, drawing or exhibit per Texas Board of Professional.Land Surveyor's "General Rules of Procedures and Practices" Section 663;1.9(9). Compiled by: C.L.Davis.&Company Job Number: 11-421-43 parcel BC 1 M&B.doc 11-10-2004 11-421-43 parcel BC 1 M&B.doc HOUSTON\1946032.14 EXHIBIT "D" Legal Description of Walsh Dedication Property PARCEL BC-2 METES AND BOUNDS DESCRIPTION 1_41.4 ACRES OUT OF LOT 21,SECTION 81 ALLISON RICHEY GULF COAST HOME COMPANY SUUBDIVISION PEARLAND,BRAZORIA COUNTY,TEXAS All that certain 1.414 acres out of Lot 21, Section 81, .Allison—Richey Gulf Coast Home Company Subdivision according to the plat thereof filed in Volume 2, Page 98 Brazoria County Plat Records and out of that certain tract described in a.deed dated 12-11-2001 from James H. Oreschnigg to Norlean N. Hulgan as filed in;Official Records of Real Property of Brazoria County at Clerk's File Number 01-056527 and being more particularly described by metes and bounds as follows(bearings based on Texas Coordinate:System of 1983,South Central Zone); Commencing at a found disc in concrete stamped City of Pearland.GPS Monument No. 9 from. which City of Pearland GPS Monument No. 10 bears S 08' 12' 14 .E -2,401.89' from said point; Thence S'67''21' 51"W—1;284.95'.to a point marking the POINT-OF BEGINNING.of herein described tract and marking the northeast corner of said Hulgan tract; 1. Thence S 03' 10' 03"E—70.00' with the west line of that certain tract described in a deed. dated 12-28-1990 from Bancplus Federal Savings Association to Peyton Martin,Trustee filed in Volume (91) 865, Page 685 Brazoria County Official Records to a set 5/8" iron rod with cap(stamped C.L.DAVIS-RPLS 4464)for corner; 2. Thence S 86'46' 15"W—880.00'to a set P.K.nail in asphalt for corner; 3. Thence N 03' 10' 03"W.—70.00' with the west line of said Lot 21 to a point for corner; 4. Thence N 86' 46' 15" E — 880.00' with the north line of said Lot 21 to the POINT OF BEGINNING and containing 1.414 acres(61,600 square feet)of land more or less. This metes and bounds description is accompanied by a separate plat, drawing or exhibit per Texas Board of Professional Land Surveyor's "General Rules of Procedures and Practices" Section 663.19(9). Compiled by: C.L.Davis Bc Company Job Number: 11-421-43 parcel BC 2 M&B.doc 11-10-2004 11-421-43 parcel BC 2 M&B.doc HOUSTON\1946032.14 EXHIBIT "E" SPECIAL WARRANTY DEED THE STATE OF TEXAS § § KNOW ALL PERSONS BY THESE PRESENTS: COUNTY OF BRAZORIA § THAT, [ ] ("Grantor"), for and in consideration of the sum of Ten and No/100 Dollars ($10.00) in hand paid to Grantor by [ ] ("Grantee"), the receipt of which is hereby acknowledged by Grantor, and other good and valuable consideration paid and agreed and secured to be paid to Grantor by Grantee in the manner set forth below, the sufficiency of which consideration is hereby acknowledged by Grantor, has GRANTED, BARGAINED, SOLD, and CONVEYED and by these presents does GRANT, BARGAIN, SELL, and CONVEY unto said Grantee, its successors and assigns, subject to the [Permitted Exceptions described below, all of that certain real property located in Brazoria County, Texas, more particularly described on Exhibit "A" attached hereto, and all of Grantor's right, title and interest, if any, in and to all easements, tenements, hereditaments, privileges and appurtenances in any way belonging to the foregoing, including, without limitation, (i) any land to the midpoint of the bed of any highway, street, road or avenue, open or proposed, in front of, abutting or adjoining such land, (ii) any land lying in or under the bed of any creek, stream, bayou or river running through, abutting or adjacent to such land, (iii) any riparian, appropriative, or other water rights of Grantor appurtenant to such land and relating to surface or subsurface waters, (iv) any oil, gas or other minerals or mineral rights relating to such land or to the surface or subsurface thereof (v) any strips, gores or pieces of property abutting, bounding or which are adjacent or contiguous to such land, and (vi) all easements, right-of-ways, rights of ingress or egress and reversionary interests benefitting such land(all such land, water rights, mineral rights, easements and other appurtenant rights being herein referred to collectively as the "Property"). This conveyance is made by Grantor and accepted by Grantee expressly subject to those matters more particularly described on Exhibit "B" attached hereto and incorporated herein for all purposes (the "Permitted Exceptions"), to the extent,but only to the extent, the same are valid and subsisting and affect the Property. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Grantee, its successors and assigns forever; and, subject to the above described Permitted Exceptions, Grantor does hereby bind itself and its successors, to WARRANT AND FOREVER DEFEND all and singular the 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. Real estate ad valorem taxes and all other taxes, assessments and standby fees against the Property for the year 2006 have been prorated between Grantor and Grantee as of the date hereof,by, through or under Grantor but not otherwise. HOUSTON\1946032.14 EXECUTED on this the day of , 2006, but effective for all purposes as of , 2006. GRANTOR: By: Name: Title: Address of Grantor: HOUSTON\1946032.14 THE STATE OF § COUNTY OF § This instrument was acknowledged before me on the day of 2006 by , the of , on behalf of GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , 2006. Notary Public in and for the State of My Commission Expires: HOUSTON\1946032.14 EXHIBIT "A" TO SPECIAL WARRANTY DEED Legal Description ITo Be Attached.' -4- EXHIBIT "B" TO SPECIAL WARRANTY DEED Permitted Exceptions {To Be Attached] -5- EXHIBIT "F" Roadway Construction Agreement HOUSTON\1946032.14