Res 2023-021R Approving a first amendment and reinstated agreement with Franklin Mountain San Marcos

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ARTICLE XVIII MISCELLANEOUS PROVISIONS Section 18.01 Termination. This Agreement may be terminated as to all of Cotton Center only by express written agreement executed by City and either (i) Primary Owner, or (ii) all the then current owners of all portions of Cotton Center (other than owners of occupied single family, duplex, townhouse, or attached single family residential lots). This Agreement may be terminated as to a portion of Cotton Center only by express written agreement executed by City and the owners of the portion of land affected by the termination; provided that if Primary Owner still owns any portion of Cotton Center, Primary Owner must consent in writing to such termination. In the event this Agreement is terminated by mutual agreement of the Parties or by its terms, the Parties shall promptly execute and file of record in the Official Public Records of Caldwell County, Texas, a document confirming the termination of this Agreement in sufficient form to cause the release of the Memorandum of Agreement, and such other documents as may be appropriate to reflect the basis upon which such termination occurs. Section 18.02 Agreement Binds Succession and Runs with the Land. This Agreement shall bind and inure to the benefit of the Parties, their successors and assigns. Subject to Section 18.03 below, the terms of this Agreement shall constitute covenants running with the land comprising Cotton Center and shall be binding on all future owners of property in Cotton Center. This Agreement will not be recorded, but a Memorandum of Agreement, in the form attached as Exhibit F, shall be recorded in the Official Public Records of Caldwell County, Texas. Nothing in this Agreement is intended to impose obligations on individual owners of platted lots, except as set forth in this Agreement. Section 18.03 Assignment. Subject to Section 18.03(a) and (b) below, Primary Owner may assign this Agreement with respect to all or part of Cotton Center from time to time to any Party without the consent of the City. Primary Owner shall provide the City thirty (30) days written notice of any such assignment. Upon such assignment or partial assignment, Primary Owner shall be fully released from any and all obligations under this Agreement and shall have no further liability with respect to this Agreement for the part of Cotton Center so assigned. a. This Agreement shall run with the land. Any sale of a portion of Cotton Center or assignment of any right hereunder shall not be deemed a sale or assignment to a Designated Successor or Assign unless the conveyance or transfer instrument effecting such sale or assignment expressly states that the sale or assignment is to a Designated Successor or Assign. b. Except as provided in the subpart (a) above, Primary Owner and all future owners of all or any portion of Cotton Center, including, without limitation, any affiliates of Primary Owner to which all or any portion of the Property is conveyed or contributed, shall have the benefits of this Agreement, and the Property may be developed as set forth herein without notice or approval to the City provided, however, that this Agreement may be amended as set forth herein. In the case of nonperformance by one owner, the City may pursue all remedies against that nonperforming owner, but will not impede development activities of any performing owner as a result of that nonperformance unless and to the limited extent that such nonperformance pertains to a City requirement that also is necessary for the performing owner's project, in which event the performing owner may also pursue remedies against the nonperforming owner. Section 18.04 Entire Agreement. This Agreement contains the entire agreement of the Parties. There are no other agreements or promises, oral or written, between the Parties regarding the subject matter of this Agreement