Ord 2022-052/Clarifying the restrictions under restrictive covenant agreement associated with ordinance No. 2021-77

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RESTRICTIVE COVENANT AGREEMENT THIS RESTRICTIVE COVENANT AGREEMENT (this "Agreement") is made and entered into as of August 2, 2022, by and between C&G Development, Inc. (the "Owner"), and the City of San Marcos, Texas (the "City"). RECITALS: A. Owner is the owner of a tract of land totaling approximately 22.58 acres situated in Hays County, Texas, more particularly described in Exhibit "A", attached hereto (the "Property"). B. Owner and the City desire to subject the Property to the terms of this Agreement. NOW, THEREFORE, in consideration of the sum of Ten and No/100 Dollars ($10.00), and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the Owner and the City do hereby agree as follows: 1. Establishment of Prohibited Uses Restrictive Covenant. The Parties hereto agree and acknowledge that the Property shall be held, sold, transferred, conveyed and occupied subject to the restrictive covenant that no truck stop, as defined in section 5.1.5.4 in the San Marcos Development Code adopted on April 17, 2018, be constructed on any portion of the 22.58 acre - tract. The Parties also agree that a hotel/motel, as defined in section 5.1.5.6 of the San Marcos Development Code (2018), will not be constructed on any part of the property within 200 feet of the property line shared with the senior living facility and church located on the western side of the 22.58 -acre tract legally defined as Mockingbird Hills Annex No. One Revised and Lot 1 Block "A" of Mockingbird Hill Annex No. Two, as set out in Exhibit "A" attached. 2. No Consent Required. The Owner and the City each hereby represent and warrant to the other that they have full requisite power and authority to enter into this Agreement without the joinder or further consent of any other party, including without limitation that of any lender, lienholder or tenant, and that this Agreement will not be subordinate to any existing lien or other monetary encumbrance. 3. Remedies. The City may pursue any remedies available at law or in equity to enforce the provisions of this Agreement, including the recovery of reasonable attorney's fees and court costs. 4. No Waiver. The failure of the City or Owner to avail itself of any of the privileges, rights, covenants, agreements, terms and conditions of this Agreement for any period of time or at any time shall not be construed or deemed to be a waiver thereof, and nothing herein contained, nor anything done or omitted to be done by the City or Owner pursuant hereto, shall be deemed a waiver by the other of any of its rights and remedies hereunder or under the laws of the State of Texas. The enforcement of any right or remedy hereunder by the City, either prior to, simultaneously with, or subsequent to any other action taken hereunder, shall not be deemed an election of remedies.