SW1210502_S-DOC-1901780-Recorded Grading and Construction Easement-2020-05-05_20210519

BK 3487 PG 474 - 483 (10) DOC# 924334
This Document eRecorded: 05/05/2020 11:39:22 AM
Fee: $26.00
Henderson County, North Carolina
William Lee King, Register of Deeds
TEMPORARY GRADING AND CONSTRUCTION EASEMENT AGREEMENT
Prepared by and return to: Adrian D. Boddie
Troutman Sanders
301 S. College Street, 34th Floor
Charlotte NC 28202
STATE OF NORTH CAROLINA
COUNTY OF HENDERSON
THIS TEMPORARY GRADING AND CONSTRUCTION EASEMENT
AGREEMENT (the "Agreement") is made this day of MA , 2020, by and between
TILTIN'B, LLC, a North Carolina limited liability company —("Grantor") and ALM
ASHEVILLE, LLC, a Delaware limited liability company ("Grantees') (Grantor and Grantee are
hereinafter sometimes individually referred to as a "Party" and collectively referred to as the
"Parties").
RECITALS
A. Grantor is the fee simple owner of those certain tracts of land conveyed to Grantor
in that deed recorded in Book 1011, Page 291 of the Henderson County, North Carolina Registry,
but less that parcel conveyed to Grantee by that deed recorded in Book at Page S,5
of the Henderson County, North Carolina Registry (the "Grantor Tract").
B. Grantee is the owner of that certain tract of land described on Exhibit A, attached
hereto and incorporated herein by reference (the "Grantee Tract").
C. The Parties wish to establish certain easements, covenants and obligations with
respect to the Grantor Tract and the Grantee Tract, as more particularly set forth below.
NOW, THEREFORE, for one dollar ($1.00) in hand paid, the mutual promises and
agreements herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby mutually acknowledged, the Parties, intending to be bound, hereby
agree as follows:
l . Temporary Grading and Construction Easement. Grantor hereby gives, grants,
bargains, sells and conveys to Grantee, its contractors and agents, a non-exclusive right and
easement (the "Grading and Construction Easement") over and upon that portion of the Grantor
Tract shown on Exhibit B attached hereto and incorporated herein by reference (the "Easement
Area") to facilitate development activities on the Grantee Tract, including, removing trees and
other vegetation, removing fencing and installing temporary fencing as herein required,
performing grading and earthwork (however, in no event shall the topography of the Easement
Area be changed except in compliance with development plans Grantee shall have prepared and
submit to Grantor for review and approval, which approval shall not be unreasonably withheld,
4191Submitted electronically by "Allen, Stahl, & Kilbourne, PLLC"
in compliance with North Carolina statutes governing recordable documents
and the terms of the submitter agreement with the Henderson County Register of Deeds.

BK 3487 PG 474 - 483 (10) DOC# 924334
conditioned or delayed, and Grantor shall either approve or reject Grantee's development plans
within three (3) business days after the date on which Grantor receives the development plans, and
if Grantor fails to timely respond with its decision such plans shall be deemed approved), and
restoring the Easement Area as herein required, including the installation of a permanent livestock
fence and the establishment of a ground cover (the "Grading and Construction Work"). TO HAVE
AND TO HOLD the foregoing described Grading and Construction Easement to the Grantee, its
successors and assigns in title for a period of eighteen (18) months from the effective date of this
instrument; it being agreed that the rights and easements hereby granted are for the use of, are
appurtenant to and run with the Grantee Tract for the stated eighteen (18) month period. Grantee
shall be solely responsible for obtaining all necessary governmental permits and approvals for the
Grading and Construction Work and shall perform the Grading and Construction Work pursuant
to all relevant regulatory codes, rules, ordinances and guidelines. The Grading and Construction
Easement includes, but is not limited to, the right and privilege by Grantee, its contractors and
agents, to go onto the Easement Area shown on Exhibit B with vehicles, heavy equipment,
machinery and construction supplies in order to perform the Grading and Construction Work.
Grantee shall maintain, at its sole cost and expense, all erosion control measures constructed on
the Grading and Construction Easement, and remove all such erosion control measures upon
completion of the Grading and Construction Work. Upon the completion of the Grading and
Construction Work, Grantee shall remove all vehicles, heavy equipment, machinery and
construction supplies from the Grantor Tract and shall return the Easement Area to good order,
free and clear of any rubbish and with an appropriate ground cover for those areas disturbed by
Grantee or its contractors. Currently fencing is located on the Easement Area to contain livestock.
Samet shall be responsible for removing the livestock fencing during its work on the Easement
Area, maintaining temporary fencing on the Easement Area as reasonably necessary to adequately
contain livestock on the Grantor Tract, and installing permanent livestock fencing (comparable to
or of better quality than the original livestock fencing that was initially removed) following the
completion of such work. The Grading and Construction Easement shall automatically terminate
and be of no further force and effect on that date which is eighteen months from the effective date
of this Agreement. During the Grading and Construction Work, Grantee shall be permitted to place
any soil removed from the Easement Area on the Grantor Tract in the area shown on Exhibit C
attached hereto and incorporated herein by reference, and Grantee shall compact such soil to such
reasonable standards as directed by Grantor. In no event, however, may trees, limbs, stumps,
rubbish or debris from the Grantee Tract be placed on the Grantor Tract. Notwithstanding any
provision herein to the contrary, in no event shall Grantee undertake any activities on or within the
Easement Area that would materially change, alter or damage the existing road located in the
Easement Area, which road is used as a means of access to the Grantor Tract and other property
adjacent to the Grantor Tract.
2. Benefits and Burdens Running With Land. The Grading and Construction Easement
herein granted shall burden the Easement Area and run with title to the Easement Area, but only
for the stated duration of the Grading and Construction Easement as addressed in Section 1 above.
The Grading and Construction Easement shall benefit the Grantee Tract and shall run with title to
the Grantee Tract, but only for the stated duration of the Grading and Construction Easement as
addressed in Section 1 above.
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3. Remedies for Breach. The terms and conditions of this Agreement shall be enforceable
by either of the Parties by actions for specific performance or injunction, in addition to any other
remedies available at law.
4. No Waiver. No delay or omission by any Party in exercising any right or power accruing
upon any noncompliance or failure of performance by the other Party under the provisions of this
Agreement shall impair any such right or power or be construed to be a waiver thereof.
5 Relationship of Parties. Nothing contained in this Agreement shall be construed to make
the Parties partners or joint venturers or render either Party liable for the debts or obligations of
the other.
6. Amendment to Agreement. This Agreement may be amended only by a written
agreement executed by each of the Parties and properly recorded in the Henderson County
Registry.
7. Notice. Any notice or other communication from one Party to the other pursuant to this
Agreement shall be in writing and shall be delivered by hand, by registered or certified snail, or by
recognized overnight delivery service such as Federal Express or UPS, and addressed as follows:
If intended for Grantor:
Tiltin' B, LLC
Attn: Elbert S. Brown, Jr.
10 Beaver Creek Lane Suite 203
Asheville NC 28804
United States of America
[phone]
With a copy to:
Gregory S. Hilderbran
Hilderbran Hitchcock PA
Asheville NC 28801
United States of America
[phone]
If intended for Grantee:
ALM Asheville, LLC
c/o USAA Real Estate Company
9830 Colonnade Blvd., Suite 600
San Antonio, Texas 78230
(21) 641-4828
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Attn: Lange Allen
With a copy to:
ALM Asheville, LLC
c/o USAA Real Estate Company
9830 Colonnade Blvd., Suite 600
San Antonio, Texas 78230
(21) 641-4828
Attn: Lange Allen
Notice shall be deemed giveai when received.
8. Attorneys Fees. In any action or proceeding arising out of this Agreement, the
prevailing party in such action or proceeding shall be entitled to recover from the other party
thereto the reasonable attorneys' fees actually incurred by the prevailing party on the basis of
normal and customary hourly rates of the prevailing party's attorneys, including such fees in any
bankruptcy proceeding or in one or more appeals, as well as court costs, filing fees, publication
costs and other expenses.
9. Indemnity. Grantor shall defend, indemnify and hold Grantee harmless from and
against all claims, liabilities, damages, losses and expenses (including reasonable attorneys' fees)
arising from or relating to the Grading and Construction Easement and resulting from any
negligent, intentional or willful acts or omissions of Grantor or its contractors, employees, agents,
or others acting on behalf of Grantor. Grantee shall defend, indemnify and hold Grantor harmless
from and against all claims, liabilities, damages, losses and expenses (including reasonable
attorneys' fees) arising from or relating to the Grantor Tract and resulting from any negligent,
intentional or willful acts or omissions of Grantee or its contractors, employees, agents, or others
acting on behalf of Grantee. Furthermore, Grantee shall defend, indemnify and hold harmless
Grantor as to any lien imposed on the Easement Area or any part of the Grantor Tract as a result
of any goods, labor or services provided or performed with regard to the Grantor Tract or the
Easement Area. The obligations of the parties as set forth in this Section shall survive indefinitely,
notwithstanding the termination of the Grading and Construction Easement as specified in Section
1 above.
10. Authority. Grantor represents and warrants: (i) that the execution and delivery of
this Agreement by Grantor has been fully authorized by all necessary action, (ii) that the person
signing this Agreement on behalf of Grantor has requisite power to bind Grantor, and (iii) that to
the best of Grantor's knowledge and belief, this Agreement is valid, binding, and legally
enforceable against Grantor in accordance with its terms. Grantee represents and warrants: (i) that
the execution and delivery of this Agreement by Grantee has been fully authorized by all necessary
action, (ii) that the person signing this Agreement on behalf of Grantee has requisite power to bind
Grantee, and (iii) that to the best of Grantee's knowledge and belief, this Agreement is valid,
binding, and legally enforceable against Grantee in accordance with its terms.
11. Miscellaneous. This Agreement shall be construed under North Carolina law. The
captions are used only as a matter of convenience and are not to be considered a part of this
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Agreement or to be used in determining the intent of the Parties. All recitals contained at the
beginning of this Agreement are an integral part of this Agreement and are fully incorporated into
the body of this Agreement.
Signatures Follow
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IN WITNESS WHEREOF, the undersigned have executed the foregoing Agreement the
day and year first above written.
TILTIN'B, LLC,
a North Carolina limited liability company
Elbert S. B, Jr. as a Member and Manager
COUNTY OF BUNCOMBE
I, the undersigned, a Notary Public of the aforesaid County and State, do hereby certify that Elbert
S. Brown, Jr. as a Member and Manager of TILTIN'B, LLC, a North Carolina limited liability
company, personally appeared before me this day and acknowledged the due execution of the
foregoing instrument on behalf of the company.
Witness my hand and official stamp or seal, this &day of May, 2020.
My Commission Expires:
U1 P 101-
[Official Seal]
'Puwt
�10
�j 3 �u A
Potary'Public
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BK 3487 PG 474 - 483 (10) DOC# 924334
GRANTOR:
ALM ASHEVILLE, LLC,
a Delaware limited liability company
By: LM Logistics REIT,
a Texas real esta nt trust, its sole member
By:
Nam
Title.
STATE OF
COUNTY OF
1, a notary public of the state of ' 2 and the County of certify that the following
person personally appeared before me this day, and he/she acknowledged to me that I e/she voltmt rily signed
the foregoing document for the purpose stated therein and in the capacity indicated: / as a
`f of LM Logistics REIT, a Texas real estate investment trust the sole memo r of ALM Asheville
LLC.
Witness my hand and official stamp or seal, this the day of )2020.
Notar,- Pub i
MELJSSA Wli_LlAMS Print Name:1f /!�1 1%�
[Note: Notary Public must sign exactly as on notary seal.]
Notary Public, State of Terns
My Comm. Fxp, 01 16-i0Z4 7
ID No.481464-1 My Commission Expires: —/`G
- [NOTARY SEAL] (MUST BE FULLY LEGIBLE)

BK 3487 PG 474 - 483 (10) DOC# 924334
Exhibit A_. to Temporary Grading and Construction Easement Agreement
LEGAL DESCRIPTION OF GRANTEE TRACT
Being a portion of that property conveyed to ALM Asheville, LLC as described in that deed recorded
in Book 3438 at Page 257 in the Office of the Register of Deeds for Henderson County, North
Carolina and being more particularly described as follows:
The point of beginning is a NC Department of Transportation right-of-way disk in the
eastern margin of the right-of-way for Boylston Highway, which right-of-way disk is South
49 degrees 58 minutes 27 seconds East 221.78 feet from North Carolina Geological Survey
Monument "Boylston" (having the North Carolina plane coordinates of N(y) = 625.717.43'
and E(x) = 942.955.32') (NAD 83/2011); and from the point of beginning and with the
margin of the right-of-way for Boylston Highway North 50 degrees 26 minutes 31 seconds
East 196.19 feet to an iron pipe; thence leaving the right-of-way for Boylston Highway
South 42 degrees 17 minutes 17 seconds East 241.20 feet to an iron pipe; thence South 05
degrees 17 minutes 32 seconds West 75.52 feet to an iron pipe; thence South 84 degrees 42
minutes 28 seconds East 171.46 feet to an iron pipe; thence South 05 degrees 18 minutes 50
seconds West 1222.73 feet to an iron pipe; thence North 84 degrees 11 minutes 55 seconds
West 171.00 feet to an iron pipe; thence South 05 degrees 17 minutes 32 seconds West
125.83 feet to an iron rebar; thence North 00 degrees 10 minutes 28 seconds West 126.51
feet to an iron rebar, which rebar is the eastern terminus of an access and utility easement
as described in that agreement recorded in Book 1193 at Page 699 in the Office of the
Register of Deeds for Henderson County, North Carolina; thence with the centerline of such
access and utility easement North 84 degrees 11 minutes 55 seconds West 942.32 feet to a
magnetic nail in the eastern margin of the right-of-way for Fanning Fields Road (SR 1354);
thence with the margin of the right-of-way for Fanning Fields Road on a curve to the right
having a radius of 410.86 feet, an arc length of 107.82 feet, a chord bearing and distance of
North 24 degrees 55 minutes 39 seconds East 107.51 feet and a delta angle of 15 degrees
02 minutes and 09 seconds to an iron pipe; thence with the margin of the right-of-way for
Fanning Fields Road North 32 degrees 31 minutes 57 seconds East 157.45 feet to an iron
rebar; thence with the margin of the right-of-way for Fanning Fields Road on a curve to the
left having a radius of 149.30 feet, an arc length of 83.67 feet, a chord bearing and distance
of North 16 degrees 30 minutes 38 seconds East 82.58 feet and a delta angle of 32 degrees
06 minutes and 37 seconds to an iron pipe; thence with the margin of the right-of-way for
Fanning Fields Road North 00 degrees 47 minutes 31 seconds West 16591 feet to a NC
Department of Transportation right-of-way disk and being a point in the margin of the
eastern right-of-way for Boylston Highway; thence with the margin of the right-of-way for
Boylston Highway North 35 degrees 08 minutes 11 seconds East 451.88 feet to a NC
Department of Transportation right-of-way disk; thence with the margin of the right-of-way
for Boylston Highway North 35 degrees 51 minutes 55 seconds East 196.54 feet to a NC
Department of Transportation right-of-way disk; thence North 43 degrees I I minutes 30
seconds East 334.81 feet to the point and place of beginning.
Also being all of Lot 1 as shown on that plat recorded at Plat Slide 12360 in the Office of the
Register of Deeds for Henderson County, North Carolina.
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Exhibit B to Temporary Grading and Construction Easement Agreement
Temporary Grading and Construction Easement Legal Description
The point of beginning is an iron pipe that is located the following five calls from North Carolina
Geological Survey Monument "Boylston" (having the North Carolina plane coordinates of N(y)
625.717.43' and E(x) = 942.955.32') (NAD 83/2011): South 49 degrees 58 minutes 27 seconds East
221.78 feet to a NC Department of Transportation right-of-way disk in the eastern margin of the
right-of-way for Boylston Highway; thence with the margin of the right-of-way for Boylston
Highway North 50 degrees 26 minutes 31 seconds East 196.19 feet to an iron pipe; thence leaving
the margin of the right-of-way for Boylston Highway South 42 degrees 17 minutes 17 seconds East
241.20 feet to an iron pipe; thence South 05 degrees 17 minutes 32 seconds West 75.52 feet to an
iron pipe; thence South 84 degrees 42 minutes 28 seconds East 171.46 feet to an iron pipe, which
iron pipe is the point of beginning; and from the point of beginning South 05 degrees 18 minutes 50
seconds West 1,222.73 feet to an iron pipe; thence South 84 degrees 11 minutes 55 seconds East 100
feet to an unmarked point; thence; North 05 degrees 18 minutes 50 seconds East 1,222.73 feet to an
unmarked point; thence North 84 degrees 42 minutes 28 seconds West 100 feet to the point of
beginning.
Also being that strip of land identified as "100' Temporary Grading Easement" as shown on that plat
recorded at Plat Slide 12360 in the Office of the Register of Deeds for Henderson County, North
Carolina.
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Exhibit C to Temporary Grading and Construction Easement Agreement
Description of Area on Grantor Tract Where Soil Can Be Placed
NO LONGER APPLICABLE. FILL DIRT WILL NOT BE PLACED ON GRANTOR'S
PROPERTY
10
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