HomeMy WebLinkAboutDrainage Easement Agreement DRAFT
DRAINAGE EASEMENT AGREEMENT
DATE: August , 2007
GRANTOR (including address): ANIMATE HABITAT LTD., a Texas limited partnership
3608 East 29th Street, Suite 100
Bryan, Brazos County, TX 77802
GRANTEE (including address): A&M SUPER STORAGE, INC., a Texas corporation
424 Tarrow Street
College Station, Brazos County, Texas 77840
LIENHOLDER (including address):
LAMAR BANK
DOMINANT ESTATE PROPERTY (including any improvements):
That certain 5.28 acre tract of real property located in Brazos County, Texas, more
particularly described in Exhibit "A" attached hereto and made a part hereof.
EASEMENT PROPERTY:
That certain tract of real property located in Brazos County, Texas, more particularly
depicted and described in Exhibit "B" attached hereto and made a part hereof.
EASEMENT PURPOSE:
The purpose of the easement is for use of the surface only of the Easement Property, to
a depth of no more than two(2)feet from its existing elevation,to construct, install,operate,
maintain,inspect,repair,reconstruct and rebuild an open drainage channel over and across
the Easement Property for stormwater drainage from the Dominant Estate Property, and
to cut, trim, and control the growth of vegetation on the Easement Property which might
interfere with or threaten the operation and maintenance of the said drainage channel.
CONSIDERATION:
Cash in hand paid, the further consideration of the easement grant and the mutual
covenants and agreements contained in this Agreement, the further consideration given
between the Grantor and Grantee herein as part of the sales contract between Grantor and
Grantee concerning the Dominant Estate Property, and other good and valuable consider-
ation, the receipt and sufficiency of which is acknowledged and stipulated.
RESERVATIONS FROM AND EXCEPTIONS TO CONVEYANCE AND WARRANTY:
1
DOC (2).max
A. Reservations. Grantor reserves the following rights to be exercised only in combination with
ownership of all or a part of the servient tenement:
(1) Reserved Rights. For Grantor and Grantor's heirs,successors and assigns forever,the
right to continue to use and enjoy the surface of the Easement Property for all purposes
directly related to the servient tenement which do not interfere with or interrupt the use or
enjoyment of the easement.
(2) Nonexclusive Rights. For Grantor and Grantor's heirs,successors and assigns forever,
the right to convey the same or other rights and easements to others as an appurtenant
easement for substantially the same purpose,so long as any further conveyance is subject
to this grant.
B. Exceptions.
(1) All easements, rights-of-way and prescriptive rights,whether of record or not, pertaining to
any portion(s) of the Easement Property;
(2) All presently recorded and valid mineral estate exceptions, rights of development or leases,
royalty reservations and other instruments constituting mineral interest severances of any
kind;
(3) All presently recorded restrictive covenants,terms,conditions,contracts, provisions,zoning
ordinances and other items, but only to the extent they are still in effect;
(4) All presently recorded instruments(other than encumbrances and conveyances by,through
or under Grantor); and
(5) Any conditions that would be revealed by a physical inspection and survey.
AGREEMENT:
Grantor, for the Consideration and subject to the Reservations From and Exceptions to
Conveyance and Warranty,GRANTS, SELLS AND CONVEYS to Grantee an easement over,upon
and across the Easement Property for the Easement Purpose and for the benefit of the Dominant
Estate Property,and portions thereof, together with all and singular the rights and appurtenances
thereto in any wise belonging, to have and hold it to Grantee, Grantee's heirs, successors, or
assigns forever. Grantor binds Grantor and Grantor's heirs and successors to warrant and forever
defend all and singular the easement to Grantee and Grantee's heirs, successors, and assigns,
against every person whomsoever lawfully claiming or to claim the same or any part thereof,except
as to the Reservations From and Exceptions to Conveyance and Warranty, by, through or under
Grantor, but not otherwise.
A. EASEMENT TERMS AND CONDITIONS:
The easement is subject to the following terms and conditions:
1. Limitations on Grantor. Grantor agrees not to:
2
DOC (2).max
a. Interference. Interfere with or interrupt the use or enjoyment of the easement.
2. Agreements of Grantee. Grantee agrees to:
a. Special Indemnity. Indemnify and hold Grantor harmless from and against all loss,
liability, and expense of whatsoever nature (including reasonable attorney's fees) to persons or
property caused by or arising out of: (i) the Grantee's exercise of easement rights under this
Agreement, (ii) the construction of any improvements in the Easement Area, (iii) default on the
terms and conditions of this Agreement, or (iv) failure to comply with applicable laws, rules,
regulations and safety standards relating to it.
b. Insurance. Obtain and maintain public liability coverage on the Easement Property,
naming Grantor as an additional insured, in form and substance reasonably required from time to
time by Grantor, with such policies being prepaid for one year and renewed at least twenty days
prior to the anniversary date, and a Certificate and a copy of the policy provided to Grantor within
five days of receipt of each.
c. Improvements. Construct and maintain the following improvements in the Easement
Property: Drainage ditch(es) using limestone rip-rap or other approved soil stabilizing material(s),
a 24 foot long, 18 inch double barrel corrugated pipe culvert crossing in a location approved by
Grantor in its sole discretion,any additional improvements required by Grantor needed for drainage
purposes. Such improvements shall be constructed by Grantee in a timely manner to prevent
drainage runoff from the Dominant Estate Property from impacting adjacent properties, including,
but not limited to, the Grantor's Property (as defined Paragraph 4(f) below) during and after
construction activities, but in no event later than June 1, 2008. Prior to performing any construction
in the Easement Area, Grantee shall provide the written designs, plans and specifications for such
drainage improvements being constructed in the Easement Property for Grantor's review and
approval, which approval may be withheld at Grantor's sole discretion. Grantee agrees to give
Grantor advance written notice of at least five (5) business days prior to beginning construction of
the initial improvements on the Easement Property and agrees to reasonably cooperate with
Grantor as to the timing and performance of such work as it relates to other activities occurring on
the Grantor's Property (as defined below).
3. Limitations on Grantee. Grantee agrees not to:
a. Hazardous Materials. Cause or knowingly authorize environmentally hazardous
materials to be transported on the Easement Property; and
•
b. Nuisance. Knowingly cause, authorize,or fail to halt any common law nuisance to occur
on the Easement Property.
4. Mutual Agreements. Grantor and Grantee agree:
a. Character of Easement. The easement granted is appurtenant to, and will run with, the
Dominant Estate Property, and portions thereof,whether or not it is referenced in any conveyance
of the Dominant Estate Property, and/or any portion of it.
b. Duration of Easement. The easement is perpetual.
3
DOC (2).max
c. Exclusiveness of Easement. The easement is nonexclusive.
d. Maintenance. Grantee shall provide reasonable maintenance to the Easement Property
at Grantee's sole expense in order that the easement functions for its intended Easement Purpose.
Any person performing maintenance to the Easement Property for or on behalf of Grantee shall
carry commercial general liability insurance against claims for bodily injury or death and property
damage occurring in connection with such maintenance activity in form,substance and in amounts
acceptable to Grantor in its sole discretion and shall name Grantor as an additional insured.
Evidence of such insurance coverage shall be provided to Grantor prior to the performance of any
maintenance activity performed by Grantee or anyone on Grantee's behalf.
e. Notice of Performance of Maintenance by Grantee. Grantee agrees to give Grantor
advance written notice of at least five (5) business days prior to performing any maintenance work
on the Easement Property and agrees to reasonably cooperate with Grantor as to the timing and
performance of such maintenance work as it relates to other activities occurring on the Grantor's
Property (as defined below).
f. Maintenance- Grantee's Duties and Grantor's Rights. Grantee shall not permit the
improvements or any natural vegetation in the Easement Property to obstruct the drainage of
surface water across the Easement Property in a manner that negatively affects Grantor's Property
(as defined below)or causes flooding of any portion of Grantor's Property. If Grantee,or the owner
of any part of the Dominant Estate Property,permits the easement improvements,any obstructions
or natural vegetation in the Easement Property to obstruct the drainage of surface water in the
Easement Property, to negatively impact the Grantor's Property and/or to cause flooding of
Grantor's Property, Grantor (or the then owner of any portion of Grantor's Property), at any time,
shall have the right to cause the required curative work to be performed in the Easement Property,
without the necessity of prior notice to any owner of the Dominant Estate Property. By performing
the activities described in this paragraph, Grantor (or the then owners of any part of Grantor's
Property) shall assume no responsibility, liability, or obligation for those activities other than
avoidable damage caused to the improvements in the Easement Area by the gross negligence of
Grantor's employees or agents. Each owner of any portion of the Dominant Estate Property shall
be jointly and severally liable to Grantor(or the then owners of any part of Grantor's Property)for
reimbursement of all costs incurred by Grantor, or the then owners, in performing the activities
described in this paragraph, and for all consequential damages to Grantor's Property caused by
the flooding. The term"Grantor's Property" shall mean that certain tract of land, save and except
the Dominant Estate Property, described in that certain Special Warranty Deed, dated July 22,
2003, from Thousand Oaks Development Company Joint Venture to Grantor recorded in Volume
5463, Page 208 of the Official Records of Brazos County, Texas.
Within thirty(30)calendar days of its receipt of the invoice for the costs incurred by Grantor
in performing such activities described in the previous paragraph,Grantee shall reimburse Grantor
for the expenditures as shown on the invoice. If Grantee ("Defaulting Party") does not pay the
amount due the Grantor set forth in the invoice, such amount due will accrue interest at the highest
rate permitted by law (or if no maximum rate is prescribed by law, at the rate of 18 percent per
year) until paid. All sums owned by the Defaulting Party shall be secured by a lien against the
Dominant Estate Property. That lien shall, however, be subordinate and inferior to the following:
(a) ail 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 mortgage lender's lien or deed
of trust. Such lien may be enforced by foreclosure of the Defaulting Party's Dominant Estate
4
DOC (2).max
Property by Grantor. Any such foreclosure sale is to be conducted in accordance with the
provisions applicable to the exercise of powers of sale in mortgages and deeds of trust,as set forth
in Texas Property Code and Civil Practice and Remedies Code of the State of Texas, or in any
other manner permitted by Texas law.
g. Ownership of Improvements. All improvements constructed within the Easement
Property shall become the property of Grantor upon such construction, unless and to the extent
Grantor may otherwise agree in writing;provided,the responsibility for the operation,maintenance,
or repair of the easement improvements shall be and remain the obligation and responsibility of
Grantee until the termination of this easement.
h. Limitation of Warranties. Except for the warranties of title, there are no implied
warranties of merchantability, of fitness for a particular purpose, or of any other kind arising out of
this Agreement.
i. Allocation of Responsibility. Each party is responsible for loss or liability caused by such
party, or by those using the easement on the basis of such party's invitation or consent.
j. Limitation on Assignment&Exercise. Any assignments or exercise of this easement by
Grantee or of Grantor's rights in this Agreement are prohibited except to the extent the easement
remains appurtenant to the Dominant Estate and the Grantor's rights in this Agreement are based
upon ownership of the servient tenement relating to the easement.
B. REMEDIES:
1. Equitable Rights of Enforcement. If there is any breach or threatened breach of this
Easement or the terms or obligations set forth herein by any party hereto or their successors or
assigns,and the default or threat continues after the claiming party gives the defaulting party notice
of the claim of default, then the claiming party may enforce the terms of this Easement by
restraining order and by temporary and permanent injunction, prohibiting such breach and
commanding the offending party to comply with all of the terms of the Easement. Restraining
orders and injunctions will be obtainable upon proof of the existence of any breach or threatened
breach,and without the necessity of proof of inadequacy of legal remedies or irreparable harm,and
shall be obtainable only by the parties hereto or those benefitted hereby; provided, however, that
the act of obtaining an injunction or restraining order will not be deemed to be an election of
remedies or a waiver of any other rights or remedies available at law or in equity.
2. Alternative Dispute Resolution. Grantor and Grantee agree to submit in good faith to
mediation before filing a suit for damages.
C. MISCELLANEOUS:
1. Attorney's Fees. If either party retains an attorney to enforce the terms of this
instrument, the prevailing party is entitled to recover reasonable attorney's fees.
2. Amendment. This Agreement may be amended only by an instrument in writing signed
by the parties to be bound by it.
5
DOC (2).max
3. Binding Effect. This Agreement is binding upon and will inure to the benefit of the parties
hereto and their respective heirs,successors and assigns where not prohibited by this Agreement;
thus, the term "Grantor" and "Grantee" includes the successors, heirs and assigns of each party.
4. Choice of Law. 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 the county in which the
Easement Property is situated.
5. 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 be attached to one instrument for convenience or for recording.
6. Effect of Waiver or Consent. No waiver or consent, 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 how 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.
7. Further Assurances. 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.
8. Integration. This Agreement contains the complete agreement between the parties and
cannot be varied except by the written agreement of the parties. The parties agree that there are
no oral agreements, understandings, representations or warranties which are not expressly set
forth herein.
9. 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 Agreement will
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
construed more or less favorably between the parties by reason of authorship or origin of language.
10. Notices. Any notice or communication required or permitted hereunder will be deemea
to be delivered,whether or not actually received,when 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 of the party
delivering the notice. Notice given in any other manner will be effective only if and when received
6
DOC (2).max
by the addressee. Any address for notice may be changed by written notice delivered in the same
manner.
11. Recitals. Any recitals in this Agreement are represented by the parties hereto to be
accurate, and constitute a part of the substantive agreement.
12. Time. Time is of the essence. Unless otherwise specified, all references to "days"
mean and refer to calendar days. Business days exclude all Saturdays, Sundays, and Texas legal
banking holidays. In the event the date for performance of any obligation falls on a Saturday,
Sunday or Texas legal banking holiday, that obligation will be performable on the next following
business day.
ANIMATE HABITAT, LTD.,
a Texas limited partnership
By: Smiling Mallard Management East, LLC,
Its General Partner
By:
Name:
Title:
STATE OF TEXAS §
§ ACKNOWLEDGMENT
COUNTY OF BRAZOS §
This instrument was acknowledged before me on the day of
2007, by , the of Smiling Mallard
Management East, LLC, a Texas limited liability company, the General Partner of ANIMATE
HABITAT, LTD., a Texas limited partnership, on behalf of said limited partnership.
Notary Public in and for
The State of Texas
GRANTEE AGREES TO AND ACCEPTS THE FOREGOING PROVISIONS OF THIS EASEMENT:
A&M SUPER STORAGE, INC.,
a Texas corporation
By:
E. HUBBARD KENNADY III,
7
DOC(2).max
President
8
DOC (2).max
THE STATE OF TEXAS § (ACKNOWLEDGMENT)
COUNTY OF BRAZOS §
This instrument was acknowledged before me on the day of August, 2007, by E.
HUBBARD KENNADY III,the President of A&M SUPER STORAGE, INC., a Texas corporation on
behalf of said corporation.
Notary Public, State of Texas
CONSENT AND SUBORDINATION BY LIENHOLDER
Lienholder, as the holder of lien(s) on the fee simple title to the Easement Property,
consents to the above grant of an easement, including the terms and conditions of such grant, and
Lienholder subordinates its lien(s)to the rights and interests of the easement, such that a foreclo-
sure of the lien(s) will not extinguish the rights and interests of the easement.
LAMAR BANK
By:
Name:
Title:
THE STATE OF TEXAS § (ACKNOWLEDGMENT)
COUNTY OF BRAZOS §
This instrument was acknowledged before me on the day of August, 2007, b by
, the of LAMAR BANK, on behalf of said
banking institution.
Notary Public, State of Texas
PREPARED IN THE LAW OFFICE OF: AFTER RECORDING RETURN TO:
The Ellison Firm UNIVERSITY TITLE COMPANY
P. O. Box 10103 1021 University Drive East
College Station, Texas 77842 College Station, Texas 77840
File No. 04748.061 GF No. 70112
9
DOC (2).max
EXHIBIT "A'.
Legal Description for Dominant Estate (5.28 Acres)
Metes and bounds description of all that certain tract of land lying and being situated in the S. D.
Smith Survey,Abstract No. 210, College Station, Brazos County,Texas. Said tract being a portion
of a called 1282.09 acre tract as described by a deed to Animate Habitat, Ltd. recorded in Volume
5463, Page 208 of the Official Records of Brazos County, Texas.
Said tract being more particularly described by metes and bounds as follows:
BEGINNING at a 60d nail found on the northeast line of State Highway No. 6 marking the most
westerly corner of said 1282.09 acre tract and the southwest corner of a called 50.00 acre tract as
described by a deed to Pebble Creek Development Co. recorded in Volume 1600, Page 313 of the
Official Public Records of Brazos County, Texas;
THENCE: N 88°37'07"E along the common line between the said 1282.09 acre tract and the said
50.00 acre tract for a distance of 1348.78 feet to a 5/8 inch iron rod set marking the northeast
corner of this herein described tract, for reference a '/2 inch iron rod found on the northerly line of
said 1282.09 acre tract marking the southeast corner of said 50.00 acre tract bears: N 88° 37'07"
E for a distance of 758.12 feet (this line was used for bearing orientation honoring the deed call
bearing of said 1282.09 acre tract);
THENCE: Through said 1282.09 acre tract for the following calls:
S 00° 42' 31" E for a distance of 141.24 feet to a 5/8 inch iron rod set;
S 56° 55' 10" W for a distance of 71.70 feet to a 5/8 inch iron rod set;
S 88° 15' 27" W for a distance of 954.40 feet to a 5/8 inch iron rod set;
N 01° 23' 01" W for a distance of 10.00 feet to a 5/8 inch iron rod set;
S 88°36'01"W for a distance of 201.54 feet to a 5/8 inch iron rod set on the northeast line of State
Highway No. 6 marking the southwest corner of this herein described tract:
THENCE: N 38° 02' 31" W along said the northeast line of State Highway No. 6 for a distance of
218.06 feet to the POINT OF BEGINNING containing 5.28 acres of land, more or less.
10
DOC (2).max
EXHIBIT B
FIELD NOTES
EASEMENT PROPERTY
0.1971 ACRES
Being all that certain tract or parcel of land Iying and being situated in the S.D. SMITH
SURVEY,Abstract No.210 in College Station,Brazos County,Texas and being part of a
1282.09 acre tract described in the deed from Thousand Oaks Development Company
Joint Venture to Animate Habitat Ltd.recorded in Volume 5463,Page 208 of the Official
Records of Brazos County, Texas (O.R.B.C.) and being more particularly described by
metes and bounds as follows:
COMMENCING: at a found 60d nail marking the most westerly corner of the said
1282.09 acre tract,the south corner of the called 50.00 acre Pebble Creek Development
Company tract described in Volume 1600, Page 313 (O.R.B.C)and said nail also being
in the northeast right-of-way line of State Highway No.6(width varies at this location),
from whence a found 1/2-inch iron rod marking an interior ell corner of the said 1282.09
acre tract and the southeast corner of the 505.19 acre Pebble Creek Development
Company tract one described in the deed recorded in Volume 1671,Page 276(O.R.B.C.)
bears N 88'37'07"E at a distance of 3202.30 feet for reference;
THENCE: S 83'39'52"E into the interior of the said 1282.09 acre tract for a distance of
1304.07 feet to the POINT OF BEGINNING;
THENCE:N 56'55'10"E for a distance of 37.50 feet for corner;
THENCE:S 69' 57'16"E for a distance of 275.00 feet for corner;
THENCE:S 20'02'44"W for a distance of 30.00 feet for corner;
THENCE:N 69'57' 16" W for a distance of 297.50 feet to the POINT OF BEGINNING
and containing 0.1971 acres(8587.6 sq.ft.)of land,more or less.
I,Kevin R. McClure, Registered Professional Land Surveyor No. 5650, State of Texas,
do hereby certify that this survey substantially complies with the current Texas Society of
Professional Surveyors Standards and Specif'. ns for a Category 1B, Condition 2
Survey. r t Or
-111407 ,A
Kevin R.McClure.R.P.L.S."5650 tvltlf{E
cCL1
DOC(2).max
EXHIBIT "B"
7
-t m
0z
0 D
-
_z
a
-4 D
m CO
-i D X CO
w vm
-I n C)
7.1
> m
v
P:1 D `rn
° Irn � H
IgD
rn 0 2
Z zm
DOC(2).max
ili DRAFT
DECLARATION OF COVENANTS, CONDITIONS,
RESERVATIONS AND RESTRICTIONS
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS 3
1.1 Declarant 3
1.2 Improvement. 4
1.3 Owner. 4
ARTICLE II.
GENERAL RESTRICTIONS 4
2.1 Construction of Improvements 4
2.2. Permitted Uses and Adverse Uses 4
2.3 Antennae and Signals 5
2.4 Subdividing 6
2.5 Rubbish and Debris 6
2.6 Noise 6
2.7 Lighting 6
2.8 Nuisance and Lateral Support 6
2.9 Repair of Improvements 6
2.10 Streets, Driveways and Parking Area 6
2.11 Signs 6
2.12 Alteration or Removal of Improvements 7
2.13 Tanks 7
2.14 Drainage 7
2.15 Hazardous Activities 7
2.16 Environmental Materials 7
2.17 Mining and Drilling 7
2.18 Machinery and Equipment 7
2.19 Temporary Structures 8
2.20 Unsightly Articles; Vehicles 8
2.21 Visitor Parking 8
2.22 Fences 8
2.23 Animals 8
2.24 Roofs 8
2.25 Construction Activities 8
ARTICLE III
MISCELLANEOUS 9
3.1 Notices 9
3.2 Remedies 9
3.3 Default 10
3.4 Severability 10
3.5 Term 10
3.6 Amendment 10
3.7 Waiver 11
3.8 No Warranty of Enforceability 41
I
DOC.max
3.9 Sole and Absolute Discretion 11
3.10 Assignment by Declarant 11
3.11 Run With Land 11
3.12 Attorneys' Fees 11
3.13 Time 12
3.14 Presumption Concerning Interpretation 12
DOC.max
DECLARATION OF COVENANTS, CONDITIONS,
RESERVATIONS AND RESTRICTIONS
STATE OF TEXAS §
COUNTY OF BRAZOS §
This DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
(this "Declaration"), is made effective as of the day of August, 2007, by ANIMATE
HABITAT, LTD., a Texas limited partnership, hereinafter called the "Declarant":
WHEREAS, Declarant is the owner of certain real property located in Brazos
County, Texas, more particularly described in that certain special warranty deed dated
July 22, 2003, executed by Thousand Oaks Development Company Joint Venture to
Animate Habitat recorded at Volume 5463, page 208, of the Official Records, Brazos
County, Texas (the "Parent Tract"); and
WHEREAS, Declarant has contracted to sell to A&M SUPER STORAGE, INC. , a
Texas corporation ("Kennedy") a 5.28 acre tract which is currently a part of the Parent
Tract, which is more fully described on Exhibit "A", attached hereto and incorporated
herein by reference (the "Property"); and
WHEREAS, Declarant desires to convey the Property subject to certain
protective covenants, conditions, restrictions, liens and charges as hereinafter set forth;
and
WHEREAS, Declarant desires to create and carry out a uniform plan for the
improvement and development of the Property and the Parent Tract for the benefit of the
present and future owners of the Property and the Parent Tract;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that it is hereby
declared (i) that all of the Property shall be held, sold, conveyed and occupied subject to
the following covenants, conditions, restrictions, and charges, which are for the purpose
of protecting the value and desirability of, and which shall run with, the Property and
which shall be binding on all parties having any right, title, or interest in or to the
Property or any part thereof, their heirs, successors, and assigns, and which shall inure
to the benefit of each owner thereof; and (ii) that each contract or deed that may
hereafter be executed with regard to the Property or any portion thereof shall
conclusively be held to have been executed, delivered and accepted subject to the
following covenants, conditions and restrictions regardless of whether or not the same
are set out or referred to in said contract or deed.
ARTICLE I.
DEFINITIONS
Unless the context otherwise specifies or requires, the following words and
phrases when used in this Declaration shall have the meanings hereinafter specified:
1.1 Declarant. "Declarant" shall mean ANIMATE HABITAT, LTD., its duly
authorized representatives or its respective successors or assigns; provided that any
3
DOC.max
assignment of the rights of ANIMATE HABITAT, LTD. as Declarant must be expressly
set forth in writing and the mere conveyance of a portion of the Parent Tract without
written assignment of the rights of Declarant shall not be sufficient to constitute an
assignment of the rights of Declarant hereunder.
1.2 Improvement. `Improvement" shall mean every structure and all
appurtenances thereto of every type and kind, including, but not limited to buildings,
outbuilding, storage sheds, patios, tennis courts, swimming pools, garages, storage
buildings, fences, screening walls, retaining walls, storm drainage structures and swells,
signs, parking lots, dumpster receptacle, stairs, decks, landscaping, poles, signs,
exterior air conditioning, water softener fixtures or equipment, and poles, pumps, walls,
tanks, reservoirs, pipes, lines, generators, meters, antennae, towers and other facilities
used in connection with water, sewer, gas, electric, telephone, regular or cable
television, or other utilities.
1.3 Owner. "Owner" or "Owners" shall mean a person or persons, entity or
entities holding a fee simple interest in the Property, but shall not include a mortgagee.
ARTICLE II.
GENERAL RESTRICTIONS
All of the Property shall be owned, held, encumbered, leased, used, occupied
and enjoyed subject to the following limitations and restrictions:
2.1 Construction of Improvements. No Improvement shall hereafter be
constructed upon any part of the Property without the prior written approval of the
Declarant, which shall be in Declarant's sole and absolute discretion. Declarant has
sole architectural control approval rights for the Property. At the time of the request for
any approval by Owner, Owner shall provide Declarant with the plans, sample building
materials, specifications (including but limited to proposed colors of building materials)
and drawings for the proposed Improvement(s) as Declarant may request. Failure of
Declarant to approve any submission by Owner does not by default approve such
submittal. Declarant may withhold approvals for any proposals submitted by Owner in
Declarant's sole and absolute discretion. All Improvements on the Property which have
a building elevation that are visible from a public roadway or the Parent Tract for a
distance of 600 feet from a public roadway or the Parent Tract shall have a masonry
facade. The term "masonry" as used herein shall mean units of natural or artificial
mineral products, including, but not limited to, stone, brick or concrete.
2.2. Permitted Uses and Adverse Uses. Unless otherwise approved in
advance by Declarant in writing, the Property and any portion thereof shall be used for
solely for indoor uses so that all activity on the Property is performed within an approved
permanent real estate structure, which includes a roof, located on the Property,
including general office and research buildings, indoor rental storage facility operated
under one ownership, and for other permitted uses that Declarant agrees to in writing.
All uses of the Property shall be approved in advance in writing by Declarant and no
adverse uses of the Property shall be allowed which conflict with the development plans
of the Parent Tract as determined by Declarant in its sole and absolute discretion.
Neither the Property nor any portion thereof shall be used for:
4
DOC.max
(a) Any use which produces noise or sound that is objectionable due to
intermittence, high frequency, shrillness or loudness.
(b) Any use which produces obnoxious odors, as determined by Declarant in its
sole and absolute discretion.
(c) Any use which produces noxious, toxic, caustic or corrosive fuel or gas.
(d) Any use which produces dust, dirt or fly ash in excessive quantities.
(e) Any use which produces fire, explosion or other damaging or dangerous
hazards (including the storage, display or sale of explosives or fireworks).
(f) Any establishment selling or exhibiting sex related or pornographic materials.
(g) A massage parlor, or the business of "adult" materials, including, without
limitation, magazines, books, movies, videos, and photographs.
(h) Any lounge, tavern, nightclub, disco, discotheque, dance hall or strip show, or
any business offering live entertainment of any kind.
(i) Any sexually oriented business providing adult type entertainment or
activities (including, without limitation, an adult cabaret, adult movie theater,
adult arcade, or adult motel or any displays or activities of a variety involving,
exhibiting or depicting sexual themes, nudity or lewd acts).
(j) Any establishment which sells alcoholic beverages for on-site or off-site
consumption.
(k) Pawn shops.
(I) Any assembling, manufacturing, industrial, distilling, refining, smelting,
agriculture or mining operation.
(m)A dry cleaning plant or photographic development establishment.
(n) Living quarters, sleeping apartment or lodging rooms.
(o) Any movie theater, skating rink, bingo parlor, bowling alley, game room, pool
room, game arcade or amusement center.
(p) Laundromat.
(q) The sale or storage of petroleum products.
(r) Any unlawful purpose or any dangerous or noxious trade or business.
(s) Sales, leasing, maintenance, repair, or display of any automobile, truck,
trailer, camper, motorcycle, recreational vehicle, or other similar vehicle, body
repair shop or products used for such equipment including but not limited to
tires, batteries and auto parts.
(t) Outdoor storage of any kind or rentals of any automobile, truck, trailer,
camper, motorcycle, recreational vehicle, farm, oil service or construction
equipment, or other similar vehicle or vehicle accessory, including, but not limited
to U-Haul type rental vehicles or trailers.
(u) Unless approved in writing by Declarant in advance, the Property shall not be
used for a church or for other religious purposes, a school or daycare.
2.3 Antennae and Signals. No antenna or other device for the transmission or
reception of television signals, radio signals, or any other form of electromagnetic
radiation shall be erected, used, or maintained on the Property, whether attached to a
building or structure or otherwise, without the prior written approval of the Declarant, and
under no circumstances shall any antennae be approved which is visible from any public
street. No radio signals, television signals or any other form of electromagnetic radiation
shall originate from the Property so as to unreasonably interfere with the reception of
television or radio signals on the Parent Tract or any part thereof. Declarant by
promulgating this section is not attempting to violate the Telecommunications Act of 1996
("the Act"), as may be amended from time to time. This section shall be interpreted to be
as restrictive as possible while not violating the Act.
DOC.max
2.4 Subdividing. The Property shall not be further divided or subdivided, nor
may any ownership interest in the Property less than the whole be conveyed by the
Owner thereof without the prior written approval of the Declarant.
2.5 Rubbish and Debris. No rubbish or debris of any kind shall be placed or
permitted to accumulate upon the Property and no odors shall be permitted to arise
therefrom so as to render the Property or any portion thereof unsanitary, unsightly,
offensive or detrimental to any other property, including the Parent Tract, or to its
occupants. Refuse, garbage and trash shall be kept at all times in covered containers
and such containers shall be kept within enclosed structures or appropriately screened
from view. If rubbish or debris accumulates upon the Property in violation of this
provision in the judgment of the Declarant, the Declarant may remove the rubbish or
debris, and charge the costs for such removal to the Owner. No obnoxious odors, as
determined by Declarant in its sole and absolute discretion, from the Property shall be
allowed to be transmitted beyond the boundaries of the Property.
2.6 Noise. No noise or other nuisance shall be permitted to exist or operate
upon any portion of the Property so as to be offensive or detrimental to any portion of the
Parent Tract or to its occupants. No noise generated on the Property shall be allowed to
transmit beyond the boundary line of the Property; for example, no part of the Property or
any improvements thereon shall be rented to, or used by, musical bands. No rallies,
political or otherwise, shall be advertised or held on the Property and Owner shall not
allow persons to congregate outside on the Property for any reason.
2.7 Lighting. No exterior lighting of any sort shall be installed or maintained on
the Property where the light source is offensive or a nuisance to the Parent Tract, except
for reasonable security or landscape lighting that has the prior written approval of the
Declarant.
2.8 Nuisance and Lateral Support. No noxious or offensive activity or work
shall be conducted upon the Property so as to impair the structural soundness or integrity
of any Improvement on any adjacent property, including any part of the Parent Tract, or
which may be or may become an annoyance or nuisance to the adjacent properties.
2.9 Repair of Improvements. All Improvements upon the Property shall at all
times be kept in good condition and repair and adequately painted or otherwise
maintained by the Owner thereof.
2.10 Streets, Driveways and Parking Area. Ail streets, driveways and parking
areas on the Property shall be surfaced with concrete or similar substance approved in
writing by the Declarant.
2.11 Signs. Other than signs attached to the exterior wall of any Improvements
which comply with the then existing City of College Station sign ordinance, no sign,
advertising or display of any kind may be constructed, erected or maintained on the
Property. Notwithstanding anything herein to the contrary, all exterior signs, including but
not limited to those attached to any Improvement, on the Property must be approved in
advance in writing by Declarant. At the time of the request for any approval, Owner shall
provide Declarant with the plans, specifications and drawings for the proposed signs as
Declarant may request. Temporary signs, political signs, vendor's signs, banners, or
advertising devices of any nature shall not be placed or used on the Property, and if any
6
DOC.max
such signs are placed on the Property by a third party, Owner shall remove it
immediately. All approved signs shall at all times be kept in good condition and repair
and adequately painted or otherwise maintained by the Owner thereof. If Owner fails to
keep the approved signage in good repair within ten (10) days after written notice from
Declarant, Declarant may make the necessary repairs to such signage according its
rights set forth in Section 3.3 below or remove such signage if maintenance is not
feasible.
2.12 Alteration or Removal of Improvements. Exclusive of normal maintenance,
any construction or removal in connection with any Improvement which in any way alters
the exterior appearance of said Improvement shall only be performed with the prior
written approval of the Declarant.
2.13 Tanks. No elevated tanks of any kind shall be erected, placed or
permitted on the Property. All tanks shall be screened so as not to be visible from any
portion of the Parent Tract.
2.14 Drainage. There shall be no interference with the established drainage
patterns of the Property unless adequate provision is made for property drainage and is
approved in advance by the Declarant. Any changes to the Property made by the Owner
shall be constructed in order that there is no change or alteration to the existing drainage
patterns on the Parent Tract.
2.15 Hazardous Activities. No activities shall be conducted on the Property and
no Improvements shall be constructed on the Property that are or might be unsafe or
hazardous to any person or property. Without limiting the generality of the foregoing, no
firearms or fireworks shall be sold or discharged upon the Property. No burning of any
property or refuse shall be permitted on the Property.
2.16 Environmental Materials. Owner shall not store, use or permit the storage
or use of any toxic or hazardous substances or materials on the Property. For the
purposes hereof, the phrase "toxic or hazardous substances or materials" shall include
items covered by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. §§9601-75 (1986), as amended by the Superfund
Amendment and Reauthorization Act, Pub. L. No. 99-499, 100 Stat. 1613 (1986)
(`CERCLA"), The Toxic Substances Control Act, 15 U.S.C. §2601 et seq., The Clean
Water Act, 33 U.S.C. §1251 et seq., The Safe Drinking Water Act, 42 U.S.C. §§300 (f) —
300 (j), and other federal, state and local laws now or hereafter in effect governing the
existence, removal or disposal of toxic or hazardous substances or materials.
2.17 Mining and Drilling. Except for any rights reserved by Declarant in its sale
of the property to Owner, no oil drilling, oil development operations, oil refining, quarrying
or mining operation of any kind shall be permitted upon or in any part of the Property, nor
shall oil wells, tanks, tunnels, mineral excavations, or shafts be permitted upon the
Property. No derrick or other structure designed for use in boring for oil or natural gas
shall be erected, maintained or permitted upon the Property.
2.18 Machinery and Equipment. Without the prior written approval of the
Declarant, no machinery or equipment of any kind shall be placed, stored or maintained
outside of an approved permanent real estate structure on any portion of the Property.
7
DOC.max
2.19 Temporary Structures. No tent, shack, storage containers, storage bins,
or other temporary building, improvement or structure shall be placed upon the Property
without the prior written approval of the Declarant.
2.20 Unsightly Articles; Vehicles. No automobiles, trailer, recreational vehicle,
tent, boat, marine craft, hovercraft, aircraft, pick-up camper, travel trailer, motor home,
camper body, motorcycle or similar vehicle or equipment, or any stripped down, wrecked,
junked, or wholly inoperable vehicle shall be kept, parked, stored, or maintained on any
visible portion of the Property, and same shall be kept, parked, stored or maintained on
the Property only within an enclosed approved real estate structure, including a ceiling.
No dismantling or assembling of motor vehicles, boats, trailers, recreational vehicles, or
other machinery or equipment shall be permitted in any part of the Property. Trucks with
tonnage in excess of one and one-half (1.5) tons and any commercial vehicle with
painted advertisement shall not be permitted to park on the Property except those used
by a builder during the construction of improvements.
2.21 Visitor Parking. Unless kept, parked, stored or maintained on the Property
within an enclosed approved real estate structure which prevents its view thereof from
adjacent Parent Tract or streets, no automobile, trailer or other vehicle shall be allowed to
remain on the Property for a period of longer than twenty four (24) consecutive hours
without the prior written consent of Declarant.
2.22 Fences. No fence, wall, or hedge shall be built or maintained on the
Property without the prior written consent of Declarant. All fences, walls or hedges built
upon the Property shall at all times be kept in good condition and repair and adequately
painted or otherwise maintained by the Owner thereof. If Owner fails to keep the
approved fences in good repair within 30 days after written notice from Declarant,
Declarant may make the necessary repairs to such fences according its rights set forth in
Section 3.3 below
2.23 Animals. No animals, livestock or poultry of any kind shall be raised, bred
or kept on the Property. No animal may be stabled, maintained, kept, cared for or
boarded for hire or remuneration on the Property and no kennels or breeding operation
shall be allowed.
2.24 Roofs. The roof(s) of all structures built on the Property shall be
constructed with a metal roof possessing a painted, baked visible finish of green, brown,
tan or other color, which is approved in advance by Declarant in writing. All roofs shall at
all times be kept in good condition and repair and adequately painted or otherwise
maintained by the Owner thereof.
2.25 Construction Activities. Notwithstanding any provision herein to the
contrary, this Declaration shall not be construed so as to unreasonably interfere with or
prevent normal construction activities during the construction of Improvements by an
Owner upon the Property. Specifically, no such construction, maintenance or repair
activities shall be deemed to constitute a nuisance or a violation of this Declaration by
reason of noise, dust, presence of vehicles or construction machinery, posting of signs or
similar activities, provided that such construction is pursued to completion with
reasonable diligence and conforms to usual construction practices in the area. No
building material of any kind shall be placed or stored upon the Property until the Owner
thereof is ready to commence Improvements or the maintenance or repair thereof.
8
DOC.max
ARTICLE III
MISCELLANEOUS
3.1 Notices . Any notice given or required to be sent under the provisions of
this Declaration shall be deemed to have been properly given when given in writing; and
(a) delivered personally;
(b) delivered to a reputable overnight delivery service providing a receipt; or
(c) deposited in the United States mail, postage prepaid and registered or
certified, return receipt requested, to the address set forth herein as may
be amended from time to time in accordance with this Declaration.
The address for Declarant and Owner shall be as provided below unless the Declarant
and/or Owner furnishes written notice of another address to the party by giving a notice
as provided herein. The effective date of any notice as provided herein (the "Effective
Date") shall be the date of personal service, one (1) business day after delivery to such
overnight service, or three (3) business days after being deposited in the United States
mail, whichever is applicable.
Declarant:
Animate Habitat, Ltd.
Attn: Paul A. Clarke
3608 East 29th Street, Suite 100
Bryan, Brazos County, TX 77802
Owner:
A&M Super Storage, Inc., a Texas corporation
Attn: E. Hubbard Kennedy
424 Tarrow Street
College Station, Brazos County, Texas 77840
3.2 Remedies. Enforcement of these covenants and restrictions shall be by any
proceeding at law or in equity, including, without limitation, an action for injunctive relief
and/or specific performance, it being acknowledged and agreed that a violation of the
covenants, conditions and restrictions contained herein could cause irreparable injury to
Declarant and that the Declarant's remedies at law for any breach of the Owner's
obligations contained herein would be inadequate. Accordingly, it is agreed that, in
addition to any other remedy to which it may be entitled at law or in equity, including
damages, Declarant shall be entitled to an injunction or injunctions without the posting of
any bond and without proof of actual damages to prevent breaches or threatened
breaches of this Declaration and/or to compel specific performance of this Agreement,
and that the Owner will not oppose the granting of such relief. Enforcement may be
commenced by the Declarant against any person or persons violating or attempting to
violate them, and failure by Declarant to enforce any covenant or restriction herein
9
DOC.max
contained shall in no event be deemed a waiver of the right to do so thereafter. The
rights created herein are unique and enforceable by specific performance.
3.3 Default. On a failure by Owner to perform, fulfill or observe any agreement
herein to be performed, fulfilled or observed by the Owner (the "Defaulting Party"),
continuing for thirty (30) days (ten (10) days for signage violations described in Section
2.11 above) after written notice thereof to the Defaulting Party from Declarant (the
"Nondefaulting Party") (but if the cure is of a nature such that it cannot reasonably be
cured within thirty (30) days, then the Defaulting Party will not be in default so long as it
promptly commences the cure and cures within a reasonable period of time, not to
exceed ninety (90) days after written notice thereof), the Nondefaulting Party shall be
entitled to (a) take all necessary actions to cure the default; and (b) recover from the
Defaulting Party the reasonable costs and expenses incurred in curing the default, plus
interest thereon at the highest lawful rate from the date incurred plus a oversight fee
equal to ten percent (10%) of the costs and expenses incurred in curing such default,
which sum shall be due and payable by the Defaulting Party to the Nondefaulting Party
within ten (10) days after receipt of notice from the Nondefaulting Party of the incurrence
of those expenses. If the Defaulting Party fails to make payment within the ten (10)-day
period, then the Nondefaulting Party shall also be entitled to recover from the Defaulting
Party its reasonable attorney's fees. All sums owed by the Defaulting Party shall be
secured by a lien against the Defaulting Party's Property. That lien shall, however, be
subordinate and inferior to all deeds of trust or mortgages heretofore or hereafter placed
against that Property for the purpose of financing or refinancing improvements thereon or
to secure the purchase price thereof and to any and all leases of premises, easements or
restrictions now in existence or hereafter created before the date the sums become due.
3.4 Severability. If any condition, covenant or restriction herein contained shall
be invalid, which invalidity shall not be presumed until the same is determined by the final
judgment or order of a court of competent jurisdiction, such invalidity shall in no way
affect any other condition, covenant or restriction, each of which shall remain in full force
and effect. If any provision of this Declaration shall be held to be invalid, illegal, or
unenforceable, in whole or in part, under applicable law, such provision shall be modified
to the minimum extent necessary to make it legal, valid and enforceable, and the
remaining provisions shall not in any way be affected or impaired.
3.5 Term. The covenants and restrictions of this Declaration shall run with and
bind the Property, and shall inure to the benefit of and be enforceable by Declarant
(during the time it owns any part of the Parent Tract), its legal representatives, heirs,
successors and assigns, for a term of twenty-five (25) years from the date this
Declaration is recorded, after which time said covenants shall be automatically extended
for successive periods of ten (10) years, unless the Declarant, or its successors or
assigns, agrees in writing to terminate or change this Declaration in whole or in part and
such writing is recorded in the Official Records of Brazos County, Texas.
3.6 Amendment. This Declaration may be amended or modified upon the
express written consent of the Declarant and the Owner. Any and all amendments, if
any, shall be recorded in the office of the County Clerk of Brazos County, Texas.
Notwithstanding the foregoing, Declarant shall have the right to execute and record
amendments to this Declaration without the consent or approval of any other party if the
sole purpose of the amendment is for the purpose of correcting technical errors or for
purposes of clarification.
10
DOC.max
3.7 Waiver. Declarant may specifically waive any breach of the terms and
conditions hereof by Owner, but no waiver specified in this paragraph shall constitute a
continuing waiver of similar or other breaches of terms and conditions hereof. No course
of dealing on the part of Declarant, its officers, employees or agents, nor any failure or
delay by Declarant with respect to exercising any right, power or privilege of Declarant
under this Declaration, constitutes a waiver thereof. All remedies, rights, undertakings,
obligations, and agreements contained herein shall be cumulative and not mutually
exclusive.
3.8 No Warranty of Enforceability. While Declarant has no reason to believe
that any of the sections, terms, or provisions in this Declaration are or may be invalid or
unenforceable for any reason or to any extent, Declarant makes no warranty or
representation as to the present or future validity or enforceability of any such sections,
terms, or provisions. Any Owner acquiring a portion of the Property or the Parent Tract
shall not be entitled to do so in reliance on the enforceability or validity of any one or
more of such sections, terms, or provisions of this Declaration and shall assume and
does assume all risks of the validity and enforceability thereof and, by acquiring a portion
of the Property or the Parent Tract, agrees to hold Declarant harmless therefrom.
3.9 Sole and Absolute Discretion. Notwithstanding anything herein to the
contrary, whenever a party to this Agreement is entitled to exercise its "sole and absolute
discretion", such discretion may be exercised by that party for any reason or for no
reason, whether such discretion is arbitrary, uncontrolled or unreasonable. Any parties'
exercise of its "sole and absolute discretion" shall be final and shall not be subject to
appeal or be subject to adjudication by a court of law, arbitration, mediation, or otherwise.
3.10 Assignment by Declarant. Declarant shall be empowered to assign its
rights, or any part hereof, to any successor entity, and upon such assignment, the
successor entity shall have those rights and be subject to those duties of the Declarant
assigned thereby. The successor entity shall be bound by this Declaration to the same
extent as the Declarant. Any such assignment shall be accepted by the successor entity
pursuant to which the successor entity expressly assumes the duties and obligations of
the Declarant thereby assigned.
3.11 Run With Land. Every person who now or hereafter owns or acquires any
right, title or interest in or to the Property is and shall be conclusively deemed to have
consented and agreed to every covenant, condition, reservation and restriction contained
herein, whether or not any reference to this Declaration is contained in the instrument by
which such person acquires an interest in the Property. Every covenant, condition,
reservation and restriction contained herein shall run with the land making up the
Property, are binding on Owner and Owner's successors and assigns and inure to the
benefit of Declarant and Declarant's successors and assigns forever.
3.12 Attorneys' Fees. Should either the Declarant or the Owner employ an
attorney or attorneys to enforce any of the terms and conditions hereof, or to protect any
right, title or interest created or evidenced hereby, or to recover damages for the breach
of the terms and conditions hereof, the non-prevailing party in any action pursued in a
court of competent jurisdiction or any alternative dispute resolution proceeding shall pay
to the prevailing party all reasonable costs, damages, and expenses, including attorneys'
fees, expended or incurred by the prevailing party.
I1
DOC.max
3.13 Time. Time is of the essence in all matters pertaining to the performance of
this Agreement. Unless otherwise specified, all references to "days" shall mean and refer
to calendar days. Business days shall exclude all Saturdays, Sundays and federal legal
holidays. In the event the date for performance of any obligation hereunder shall fall on a
Saturday, Sunday or federal legal holiday, then that obligation shall be performable the
next following regular business day.
3.14 Presumption Concerning Interpretation. This Agreement is not to be
construed more or less favorably by reason of authorship or origin of language.
IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has
hereto set its hand this the day of , 2007.
ANIMATE HABITAT, LTD.,
a Texas limited partnership
By: SMILING MALLARD MANAGEMENT EAST,
LLC, its general partner
By:
Paul J. Clarke, Manager
STATE OF TEXAS §
COUNTY OF BRAZOS §
This instrument was acknowledged before me on this the day of August,
2007 by Paul J. Clarke, Manager of Smiling Mallard Management East, LLC, as general
partner of Animate Habitat, Ltd., a Texas limited partnership, on behalf of said
partnership.
Notary Public. State of Texas
12
DOC.max