HomeMy WebLinkAboutDrainage Agreement 07/.13/2006 08:52 FAX 979 775 3161 FNB [4 002
RECIF'ROCAL ACCESS AND DRAINAGE AGREEMENT
THE STATE OF TEXAS §
COUNTY OF BRAZOS §
THIS RECIPROCAL ACCESS AGREEMENT("Agreement")is made by and between THE
FIRST NATIONAL BANK OF BRYAN, 2807 Texas Avenue South, Bryan, Texas 77802 (the
"Bank")and H&B INVESTMENTS, LP, 2307 Texas Avenue South, College Station, Texas 77840
("H&B") (collectively the Bank and H&B shall be the "Grantors", or individually "Grantor")
WITNESSETH :
WHEREAS, the Bank owns a tract of real property located in Brazos County. Texas, being
more particularly described on Exhibit "A" attached hereto and incorporated herein by reference
("Bank Property"); and
WHEREAS, H&B owns a tract of real property located in Brazos County,Texas, being more
particularly described on Exhibit"B"attached hereto and incorporated herein by reference ("H&B
Property"); and
WHEREAS, the Bank and H&B desire to provide for reciprocal ingress,egress, and access
rights to and from their respective tracts in a manner substantially similar to that shown on the site
plan on Exhibit"C"attached hereto and incorporated herein by reference; and
WHEREAS, the Bank and H&B desire to allow storm water runoff to flow from the Bank
Property onto the H&B Property as agreed herein; and
NOW,THEREFORE,for and in consideration of the foregoing,and other good and valuable
consideraion, the receipt and sufficiency of which are hereby acknowledged, the Bank and H&B
hereby create the following easements, obligations, and restrictions and do hereby agree as
follows:
A. RECIPROCAL ACCESS EASEMENT
1. Easement. Each Grantor does hereby GRANT, SELL and CONVEY to the other
a non-excilusive easement for pedestrian and vehicular ingress, egress, and access over and
across the Grantor's Property to and from Texas Avenue and Manuel Drive, TO HAVE AND TO
HOLD the Easement (as hereinafter defined) (insofar as the Easement affects or burdens each
respective Grantor's Property), together with all and singular the rights and appurtenances
thereunto belonging to the Grantors and their respective successors and assigns,and the Grantors
hereby bind themselves and their successors and assigns to warrant and forever defend all and
singular the Easement (insofar as the Easement affects or burdens each respective Grantor's
Property)unto the Grantors and their successors and assigns against every person whomsoever
lawfully claiming or to claim the same, or any part thereof, by, through or under Grantors, but not
otherwise. The Easement created herein is generally located as shown on Exhibit "C". The
easements created by Section A of this Agreement shall be referred to herein as the "Easement".
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2. Use of Easement. The Easement shall be for ingress and egress to and from Texas
Avenue and Manuel Drive and the Grantors' Property by the Grantors, their employees, tenants,
licensees., invitees, permiiees and other users of the Grantors' Property; provided, however, that
in no event shall the consent or joinder of any one or more of such tenants, licensees, occupants,
invitees, customers, employees, or agents thereof be required to modify, amend, or terminate the
Easements.
3. Covenants of Grantors. Each Grantor:
a. Ma ntenance. Agrees to improve, repair and maintain that portion of
Grantor's Property used for the Easement described herein in a level,
smooth, neat and clean condition. Any repairs shall be made with the type
of surfacing material originally installed or a substitute material that is equal
in quality, appearance and durability. If a Grantor fails to maintain that
portion of Grantor's Property used for the Easement described herein and
such failure unreasonably interferes with the other Grantor's use and
enjoyment of the Easement, then the other Grantor may make such repairs
twenty (20) days after providing the defaulting Grantor with written notice
set:ing forth the need for repairs and the other Grantor's intention to make
the repairs if the defaulting Grantor fails to complete such repairs within the
twenty (20) day period. The party completing such repairs shall do so in a
good, workmanlike manner using the ordinary and customary means
common for such work in the community in which the Easement is located
and, after making such repairs, forward a statement to the defaulting
Grantor itemizing the costs incurred_ The defaulting Grantor shall reimburse
the improvement, repair and maintenance costs within fifteen (15) days of
receipt of such statement. All sums due for maintenance costs from the
defaulting Grantor to the other which are not paid within fifteen (15) days,
including interest thereon at ten percent(10%) per annum, shall constitute
a lien on such Grantor's Properly prior to all other liens and encumbrances,
except for: (a) all taxes and special assessments levied by governmental
and taxing authorities;and(b)all liens securing sums due or to become due
under any duly recorded third party mortgage vendor's lien or deed of trust,
b. Insurance. Agrees to obtain and maintain public liability coverage on the
Grantor's own Property and, upon request, provide the other Grantor with
a certificate evidencing such insurance coverage.
c. Taxes. Agrees to pay all ad valorem taxes assessed on the Grantor's
Prc perty.
d. Special Indemnity. Agrees to indemnify and hold the other Grantor
harmless from and against all loss, liability, and expense of whatsoever
net ere(including reasonable attorney's fees)to persons or property caused
by, arising out of or otherwise related to: (i) the Grantor's exercise of
easement rights under this Agreement, (ii) default on the terms and
corditions of this Agreement, (iii) failure to comply with applicable laws,
rules, regulations and safety standards relating to it,or(iv)the construction,
repair or maintenance of such Grantor's Property. Notwithstanding the
foregoing, the provisions of this Paragraph 3.d. shall not apply to losses,
liability and expenses caused by or arising out of or otherwise related to the
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use of the Easement by a Grantor's invitees, permittees, customers or other
users of Grantor's Property.
e. Reservation by Grantors_ Reserves the right to modify, but not prohibit,the
trafic flow from time to time on the Grantor's Property; provided, however,
each Grantor shall at all times provide the other Grantors and their invitees,
err ployees, agents, and guests, vehicular and pedestrian access to and
across Grantor's Property.
4. Limitations on Grantors. Each Grantor agrees not to:
a. Hazardous Materials. Cause or knowingly authorize environmentally
hazardous materials to be transported on the Grantor's Property;
b. Npisance. Knowingly cause, authorize, or fail to halt any common law
nuisance to occur on the Grantor's Property which unreasonably interferes
with the use of the Easement; and
c. Restrict Vehicular Traffic Flow. Cause or knowingly restrict the free
pedestrian and vehicular access on the Grantor's Property. This limitation
does not restrict Grantor's right to use Grantor's Property for purposes
Mich do not restrict the other Grantors' use of the Easement.
5. Character of Easement. The Easement granted is appurtenant to, and will run with
the benefitted property, and portions thereof, whether or not it is referenced in any conveyance of
such property and/or any portion thereof. Any assignment or exercise of this Easement by the
Bank or H•i&B is prohibited except to the extent the easement remains appurtenant to such
Grantor's property and each Grantor's rights and obligations in this Agreement are based upon
ownership of Grantor's Property.
B. DRAINAGE EASEMENT
1. Drainage Easement. The Drainage Easement (as hereinafter defined) is created
to allow water runoff to flow from the Bank Property onto and across the H&B Property, H&B does
hereby GRANT, SELL and CONVEY to the Bank a non-exclusive easement to allow storm water
to runoff(and other water and/or incidental runoff) over, under and across the H&B Property, TO
HAVE AND TO HOLD the Drainage Easement (as hereinafter defined) (insofar as the Drainage
Easement affects or burdens the H&B Property), together with all and singular the rights and
appurtenances thereunto belonging to H&B and its successors and assigns,and H&B hereby binds
H&B and its successors and assigns to warrant and forever defend all and singular the Drainage
Easement(insofar as the Drainage Easement affects or burdens the H&B Property) unto the Bank
and its successors and assigns against every person whomsoever lawfully claiming or to claim the
same,or any part thereof, by, through or under H&B, but not otherwise_ Additionally. and as a part
of the Drainage Easement granted herein, the Bank and H&B agree that the Bank is authorized
to connect,the drainage system for the Bank Property into the H&B storm water runoff system at
Inlet No. 3A as shown on the diagram on Exhibit "D" attached hereto and incorporated herein by
reference. The drainage easement created by this Section B shall be referred to herein as the
"Drainage Easement".
2. Character of Drainage Easement. The Drainage Easement granted herein is
appurtenant to, and will run with the benefitted property, and portions thereof, whether or not it is
referenced in any conveyance of the Bank Property and/or any portion thereof. Any assignment
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or exercise of this Drainage Easement by the Bank is prohibited except to the extent the easement
remains appurtenant to the Bank Properly.
C. GENERAL PROVISIONS
1. No Public Dedication. Nothing contained in this Agreement shall ever constitute or
be construed as a dedication of any portion of the Grantors' to the public or give any member of
the public any rights whatsoever; it being the express intention of the parties hereto that this
Agreement shall be for the exclusive, respective benefit of the Grantors' property and the owners
thereof and their respective successors and assigns, as provided for herein.
2. Attorney's Fees_ If either party retains an attorney to enforce the terms of this
Agreement, the prevailing party is entitled to recover reasonable attorney's fees.
3. Amendment. This Agreement may be amended only by an instrument in writing
signed by the parties to b e bound by it.
4. Binding Effect. This Agreement is binding upon and will inure to the benefit of the
parties hereto and their respective successors and assigns where not prohibited by this Agreement;
thus, the term "Grantors", "Grantor", "Bank' and "H&B" includes the successors and assigns of
each party,.
5. Choice of L . This Agreement is subject to and governed by the laws of the State
of Texas, excluding any conflicts-of-law rule or principle that might refer the construction or
interpretation of this Agreement to the laws of another state. Each party submits to the jurisdiction
of the state and federal courts in the State of Texas and to venue in Brazos County.
6. Counterparts. This Agreement may be executed in any number of counterparts with
the same effect as if all signatory parties had signed the same document All counterparts are to
be construed together and will constitute one and the same instrument, and the signature pages
of each document may ba attached to one instrument for convenience or for recording. This
Agreement may be executed by facsimile signature, which for all purposes shall be deemed an
original signature.
7, Effect of Waiver or Consent. No waiver orconsent,express or implied, by any party
to or of any breach or default by any party in the performance by such party of its obligations
hereunder will be deemed or construed to be a consent or waiver to or of any other breach or
default in the performance by such party of the same or any other obligations of such party
hereunder. Failure on the part of a party to complain of any act of any party or to declare any party
in default,irrespective of h Dw long such failure continues,will not constitute a waiver by such party
of its rights hereunder until the applicable statute of limitation period has run.
8. Further Ae;urances. In connection with this Agreement as well as all transactions
contemplated by this Agreement, each signatory party hereto agrees to execute and deliver such
additional documents and instruments and to perform such additional acts as may be necessary
or appropriate to effectuate,carry out and perform all of the terms, provisions and conditions of this
Agreement and all such transactions.
9. Integration This Agreement contains the complete agreement between the parties
and cannot be varied exce3t by the written agreement of the parties. The parties agree that there
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are no oral agreements, understandings,representations or warranties which are not expressly set
forth herein,
10. Legal Construction. If one or more of the provisions of this Agreement are invalid,
illegal or 'unenforceable in any respect, to the extent the invalidity or unenforceability does not
destroy the basis of the bargain among the parties, it will not affect any other provision and this
Agreemeiiitwill be construed as if such invalid,illegal or unenforceable provision had never existed.
When required by the context, singular nouns and pronouns include the plural and the neuter
includes the masculine or feminine gender. The Article and Section headings are for convenience
of reference only and are not intended to limit or define the text. This Agreement is not to be
construedmore or less favorably between the parties by reason of authorship or origin of language.
11, Notices. Any notice or communication required or permitted hereunder will be
deemed to be delivered, whether or not actually received, three (3) days after being deposited in
the United States mail, postage fully prepaid, registered or certified mail, and addressed to the
intended recipient at the address shown, and if not shown, then at the last known address
according to the records cf the party delivering the notice or any address of any subsequent owner
in any deed of record in B-azos County, Texas_ Notice given in any other manner will be effective
only if and when received by the addressee. Any address for notice may be changed by written
notice delivered in the same manner.
12, Recitals. Any recitals in this Agreement are represented by the parties hereto to be
accurate, and constitute ei part of the substantive agreement.
13. Time. Time is of the essence. Unless otherwise specified, all references to "days"
mean and refer to calender days, In the event the date for performance of any obligation falls on
a Saturday, Sunday or federal legal banking holiday, that obligation will be performable on the next
following day that is not a Saturday, Sunday or federal legal banking holiday.
14. Presumption Concerning Interpretation. This Agreement shall not be construed
more or less favorably between the parties by reason of authorship or origin of language.
This Agreement has been executed by the parties on the date of the taking of their
anowledlgment(s), but the effective date of this Agreement shall be deemed to be
ul I . 2006 for all purposes and it shall be effective as of that date.
The Fi ionat Bank of Bryan
By:
imothy . Bryan, Chief Executive Officer
H&B Investments, LP
By: Its General Partner, H&B Management, LLC
By:
Larry Hodges _Hager
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•
THE STATE OF TEXAS §
COUNTY OF BRAZOS §
This Agreement was acknowledged before me on the / day of du-L�� 2006
by Timothy N. Bryan, as Chief Executive Officer of The First National Bank of Bryan.
Ei DARLENE NICHOLS AA,„,,Q__,.( ,,i.,),,,},,Q_.,
,,,* Notary Pak,Slate of Texas Nolic in and for t e State of Texas
My Commission Expires
y JANUARY 31,2009 A
THE STATE OF TEXAS §
COUNTY OF BRAZOS §
This Agreement was acknowledged before me on the (54--6 day of , 2006
by Larry Hodges, acting as Manager of H&B Management, LLC, the General art�H&B
Investments, LP.
- - - - - (;�c c�z '
VICKI .WARD
': Notor�Public Notary Public in and for the State of Texas
State is on s
Ii! 7 My Commission Expires
I a►'�'. February' 11, 2007
AFTER RECORDING RETURN TO: PREPARED IN THE LAW OFFICE OF:
Charles A. Ellison, P.C. Charles A. Ellison, P.C.
P.O. Box 10103 P.O. Box 10103
College Station, Texas 77842 College Station, Texas 77842
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