HomeMy WebLinkAboutEasement for Drainge Doc 8 Vol
Easement Agreement for Drainage
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Date: July 2,1,2015
Grantor: SMILING MALLARD DEVELOPMENT,LTD.,a Texas limited partnership; and
PAUL CLARKE, individually
Grantor's Mailing Address: 3608 East 29th Street,Suite 100, Bryan,Brazos County,TX 77802
Grantee(individually and collectively) and Grantee's Mailing Addresses:
BRYAN TEXAS UTILITIES
205 E. 28th Street
Bryan, Texas 77803
WELLBORN SPECIAL UTILITY DISTRICT
4118 Greens Prairie Road
College Station,Texas 77845
COUNTY OF BRAZOS,TEXAS-ROAD &BRIDGE DEPARTMENT
2617 Highway 21 West
Bryan, Texas 77803
Easement Property: See Exhibit"A" attached hereto and made a part hereof.
Easement Purpose: For the installation, construction, operation, maintenance, replacement, repair,
upgrade, and removal of the following utility infrastructure and related facilities thereto
(collectively, the "Facilities"): Storm Water Drainage ditches, drainage pipes and all other
drainage structures.
Consideration: Good and valuable consideration,the receipt and sufficiency of which are acknowledged
by Grantor.
Reservations from Conveyance: As provided in Paragraph 3 below.
Exceptions to Warranty: This conveyance is made by Grantor and accepted by Grantee subject to any
and all existing easements, covenants, rights-of-way, conditions, restrictions, outstanding mineral
interests and royalty interests, if any,relating to the Easement Property, to the extent,and only to
the extent, that the same shall be in force and effect, and either shown of record in the Office of
the County Clerk of Brazos County or that may be apparent on the Easement Property.
Grant of Easement: Grantor, for the Consideration and subject to the Reservations from Conveyance and
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Exceptions to Warranty, grants, sells, and conveys to Grantee and Grantee's successors and
assigns an easement under and across the Easement Property for the Easement Purpose,together
with all and singular the rights and appurtenances thereto in any way belonging(collectively, the
"Easement"), to have and to hold the Easement to Grantee and Grantee's successors and assigns
forever. Grantor binds Grantor and Grantor's successors and assigns to warrant and forever
defend the title to the Easement in Grantee and Grantee's successors and assigns against every
person whomsoever lawfully claiming or to claim the Easement or any part of the Easement,
except as to the Reservations from Conveyance and Exceptions to Warranty, to the extent that
such claim arises by,through,or under Grantor but not otherwise.
Terms and Conditions: The following terms and conditions apply to the Easement granted by this
agreement:
1. Character of Easement. The Easement is nonexclusive and irrevocable. The Easement is
for the benefit of Grantee and Grantee's successors, and assigns (as applicable, the "Holder"). The
Easement granted herein is"in gross" in that there is no benefited property. Nevertheless, the Easement
rights granted herein shall pass to Grantee's successors and assigns, subject to all of the terms hereof.
The Easement shall not be construed in any manner to create or grant any rights to the public generally,to
any other person or entity, or to the owner of any other property to use or enter upon the Easement
Property.
2. Duration of Easement. The term of the Easement will expire when Easement and
Facilities provided for herein are dedicated to the public pursuant to a recorded subdivision plat of the
Easement Property.
3. Reservation of Rights. Holder's right to use the Easement Property is nonexclusive,and
Grantor reserves for Grantor and Grantor's heirs, successors, and assigns the right to use all or part of the
Easement Property in conjunction with Holder as long as such use by Grantor and Grantor's heirs,
successors, and assigns does not reasonably interfere with the use of the Easement Property by Holder for
the Easement Purpose, and the right to convey to others the right to use all or part of the Easement
Property in conjunction with Holder, as long as such further conveyance is subject to the terms of this
agreement
4. Improvement and Maintenance of Easement Property. Improvement and maintenance
of the Easement Property and the Facilities will be at the sole expense of Holder. Holder has the
reasonable right to cut, trim and control the growth of trees and other vegetation on and in the Easement
Property. Holder must maintain the Easement Property in a neat and clean condition. Holder has the right
to construct, install, maintain, replace, and remove the Facilities under or across any portion of the
Easement Property. All matters concerning the Facilities and their configuration, construction,
installation, maintenance, replacement, and removal are at Holder's reasonable discretion, subject to
performance of Holder's obligations under this agreement.
5. Equitable Rights of Enforcement. This Easement may be enforced by restraining orders
and injunctions (temporary or permanent) prohibiting interference and commanding compliance.
Restraining orders and injunctions will be obtainable on proof of the existence of interference or
threatened interference, without the necessity of proof of inadequacy of legal remedies or irreparable
harm, and will be obtainable only by the parties to or those benefited by this agreement; provided,
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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.
6. Dedication to the Public. Notwithstanding the foregoing, it is agreed that Grantor or the
owner of any part of Grantor's property adjacent to the Easement Property have the right to dedicate any
and all of the Easement Property to a public entity or public utility service provider and/or to convey any
or all of the improvements and facilities constructed within the Easement Property to a public entity or
public utility service provider; provided any such dedication or conveyance shall be subject to the
reservations,terms, conditions and exceptions set forth herein.
7. Attorney's Fees. If any party retains an attorney to enforce this agreement, the party
prevailing in litigation is entitled to recover reasonable attorney's fees and court and other costs.
8. Binding Effect. This agreement binds and inures to the benefit of the parties and their
respective successors and permitted assigns.
9. Choice of Law. This agreement will be construed under the laws of the state of Texas,
without regard to choice-of-law rules of any jurisdiction. Venue is in the county or counties in which the
Easement Property is located.
10. Waiver of Default. It is not a waiver of or consent to default if the nondefaulting party
fails to declare immediately a default or delays in taking any action. Pursuit of any remedies set forth in
this agreement does not preclude pursuit of other remedies in this agreement or provided by law.
11. Entire Agreement. This agreement and any exhibits are the entire agreement of the
parties concerning the Easement Property and the grant of the Easement by Grantor to Grantee. There are
no representations, agreements,warranties, or promises, and neither party is relying on any statements or
representations of any agent of the other party, that are not expressly set forth in this agreement and any
exhibits.
12. Legal Construction. If any provision in this agreement is for any reason unenforceable,
to the extent the unenforceability does not destroy the basis of the bargain among the parties, the
unenforceability will not affect any other provision hereof, and this agreement will be construed as if the
unenforceable provision had never been a part of the agreement. Whenever context requires, the singular
will include the plural and neuter include the masculine or feminine gender, and vice versa. Article and
section headings in this agreement are for reference only and are not intended to restrict or define the text
of any section. This agreement will not be construed more or less favorably between the parties by reason
of authorship or origin of language.
13. Notices. Any notice required or permitted under this agreement must be in writing.Any
notice required by this agreement will be deemed to be delivered (whether actually received or not)when
deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested,
and addressed to the intended recipient at the address shown in this agreement. Notice may also be given
by regular mail, personal delivery, courier delivery, facsimile transmission, or other commercially
reasonable means and will be effective when actually received. Any address for notice may be changed
by written notice delivered as provided herein.
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14. Recitals. Any recitals in this agreement are represented by the parties to be accurate,
and constitute a part of the substantive agreement.
15. Time. Time is of the essence. Unless otherwise specified, all references to "days"mean
calendar days. Business days exclude Saturdays, Sundays, and legal public holidays. If the date for
performance of any obligation falls on a Saturday, Sunday, or legal public holiday, the date for
performance will be the next following regular business day.
SMILING MALLARD DEVELOPMENT,LTD.
a Texas limited partnership
By: Smiling Mallard Management,LLC
a Texas limited liability company,
its general partner
By:
'��
Paul Clarke,M. ager
---/--;_ii,,- e„..._ ____
PAUL CLARKE,1i,ividually
/
THE STATE OF TEXAS § (ACKNOWLEDGMENT)
COUNTY OF BRAZOS §
This instrument was acknowledged before me on the(3 I'Ciday of July, 2015, by Paul Clarke,
individually and as Manager of Smiling Mallard Management, LLC, General Partner of SMILING
MALLARD DEVELOPMENT,LTD.,on behalf of the partnership.
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My ge
Mirada Notary Public, State of Texas
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EXHIBIT "A" OR 12;335 217
Page 2 of 2
FIELD NOTES
PUBLIC DRAINAGE EASEMENT
0.0373 ACRES
Being all that certain tract or parcel of land lying and being situated in the J.M.BARRERA SURVEY,
Abstract No. 69, Brazos County,Texas and being part of the called 17.41 acre Tract 1 of Tract Four
described in the deed from Partners in Habitat Preservation,LLC to Smiling Mallard Development Ltd.
recorded in Volume 8765, Page 176 of the Official Records of Brazos County, Texas (O.RB.C.) and
part of the 18.304 acre tract described in the deed from Brierpatch, Ltd. to Paul Clarke recorded in
Volume 12330,Page 214(O.R.B.C.),and being more particularly described as follows:
COMMENCING: at a found 1/2-inch iron rod marking the northwest corner of the said 18.304 acre
tract,the southwest corner of a 30-foot wide easement described in Volume 296,Page 248 of the Brazos
County Deed Records(B.C.D.R.)and being in the east line of the called 17.41 acre tract,from whence a
found 1/2-inch iron rod marking the northeast corner of the called 18.304 acre tract bears N 87° 34'
37"E at a distance of 398.74 feet for reference;
THENCE:N 39°35'55"W into the interior of the said 18.304 acre tract for a distance of 83.25 feet to
the POINT OF BEGINNING;
THENCE:S 02°24'28"E for a distance of 25.00 feet for corner;
THENCE:S 87°35'32"W,at 50.31 feet cross the west line of the said 18.304 acre tract,continue into
the interior of the called 17.41 acre tract for total distance of 65.00 feet for corner;
THENCE:N 02°24'28"W for a distance of 25.00 feet for corner;
THENCE:N 87° 35'32"E, at 14.69 feet cross the common Iine of the called 17.41 acre and the said
18.304 acre tracts,continue for a total for a distance of 65.00 feet to the POINT OF BEGINNING and
containing 0.0373 acres(1,625.1 sq.ft.)of land,more or less,according to a survey made on the ground
under the supervision of Kevin R McClure,Register:,• • essional Land Surveyor, State of Texas,No.
5650,in July,2015. /.•;cE OF T�'•-
For further information see survey , .rf P o .
plat prepared with this description. "'KEVIN R.Mcg L 1 W1116
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