Loading...
HomeMy WebLinkAboutDrainage EasementDATE: DRAINAGE EASEMENT AGREEMENT Augus~,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): MIDSOUTH BANK, formerly known as Lamar Bank 555 N. Dowlen Road Beaumont, Texas 77706 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 Exh ibit "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 Granter and Grantee herein as part of the sales contract between Granter 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 nnr. m::1x A. Reservations. Granter 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 Granter 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 Granter); and (5) Any conditions that would be revealed by a physical inspection and survey. AGREEMENT: Granter, 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. Granter binds Granter 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 Granter, but not otherwise. A EASEMENT TERMS AND CONDITIONS: The easement is subject to the following terms and conditions: 1. Limitations on Granter. Granter agrees not to: 2 f"'\r'\,... m .... v 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 Granter as an additional insured, in form and substance reasonably required from time to time by Granter, 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 Granter 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 Gran tor in its sole discretion, any additional improvements required by Granter needed for drain age 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 fo r 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 Granter 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 hazard ous 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. Granter and Grantee agre e: 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.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 ar;id 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, Granter (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, Granter (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) 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 mortgage lender's lien or deed of trust. Such lien may be enforced by foreclosure of the Defaulting Party's Dominant Estate 4 r'\r'\(" m'!lV Property by Granter. 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 Granter 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, offitness 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 own~rship 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. Granter 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 "'"',.... --·· 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 "Granter'' 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 deemed 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 DOr._m;:ix 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 STATE OF TEXAS COUNTY OF BRAZOS § § § ACKNOWLEDGMENT This instrument was acknowledged before me on,the ~7 day of Augusf , 2007, by Paul ::r. c /a.VK e ' the /V/a!'1a.q10fj /1(.tnbir of Smiling Mallard Management East, LLC, a Texas limited liability co~pany, the General Partner of ANIMATE HABITAT, LTD., a Texas limited partnership, on behalf of said limited partnership . • CYNTHIAl .• LBI ~_d. ~ NDllrJ Pqillc. ... cl T-NotPUbliCiflir)d for ~CUINTIHI•_. The State of Texas PECElia!R D, 2010 GRANTEE AGREES TO AND ACCEPTS THE FOREGOING PROVISIONS OF THIS EASEMENT: A&M SUPER STORAGE, INC., a Texas corporation B~~ .EHU8BARDKEN'NAOll( President 7 DOC.max THE STATE OF TEXAS COUNTY OF BRAZOS § § (ACKNOWLEDGMENT) This instrument was acknowledged before me on the ~y of August, 2007, by E. HUBBARD KENNADY Ill, the President of A&M SUPER STORAGE, INC., a Texas corporation on behalf of said corporation. 8 DOC.max 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. MIDSOUTH BANK formerly known as Lamar Bank THE STA TtS TEXAS § (ACKNOWLEDGMENT) COUNTY 0F'=if1~ § 1::;i C-~hisJ<Js!fum~ ~as ack!)PWl~d~,ed b!!re !J\e pn th~d ;y of August, 2007, b by _) . ..J12_\JI (J_ .LO~.the ::::::Y: V1Cuj21b/d~ofMIDSOUTHBANK,formerlyknown as Lamar Bank, on behalf of said banking institution. PREPARED IN THE LAW OFFICE OF: The Ellison Firm P. 0 . Box 10103 College Station, Texas 77842 File No. 04748.061 9 AFTER RECORDING RETURN TO: UNIVERSITY TITLE COMPANY 1021 University Drive East College Station, Texas 77840 GF No. 70112 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 comer of said 50.00 acre tract bears: N 88° 37' 07'' E for a distance of 758.12 feet (this fine 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 fine 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 nor. m::ll( EXHIBITB F"iELDNOTES EASEMENT PROPERTY 0.1971 ACRES Being all that certain tract or parcel of land lying 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 Jo!nl Venture to Animate Habitat Ltd. recorded in Volume 5463, Page 208 of the Official Records of Brazos County, Texas (0.R.D.C.) and being more particularly described by metes and bounds as follows: COMMENCING: at a found 60d nail marking ihe most westerly comer of the said 1282.09 acre tract, the south comer of the called 50.00 acre Pebble Creek Development Company tract described in Volume 1600, Page 313 (0.R.B.C) and said nail also being in the northeast right--0f-way line of State Highway No. 6 (width varies at this location), from whence a found 112-inch iron rod marking an interior ell comer of the said 1282.09 acre rract !Uld the southeast comer 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'' Eat 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 l 304.07 feet to the POINT OF BEGlNN'..NG; THENCE: N 56" 55' 10" E for a distance of 37.50 feet for comer; THENCE: S 69. 57' 16" E for a distance of275.00 fet!t for comer; THENCE: S 20· 02' 44" W for a distance of30.00 feet for corner; THENCE: N 69" 57' 16" W for a distance of 297 .50 feet to the POINT OF BEGIN"'NING 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 certii)' that this survey substantially complies with the current Texas Society of lB, Condition 2 Kevin R. McClure, R.P.L.S. #5650 nnr..m;:ix (o I-m I G') ' ' ' ' ' KENNADY TRACT PEBBLE CREEK TRACT ANIMATE HABITAT TRACT ----~ --·-·----.. ---...... ·-- DRAINAGE EASEMENT LOCATION DRAINAGE EASEMENT LOCATION MAP SCALE: 1" = 175'