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HomeMy WebLinkAboutEasement Agreement© Doc R Vol Fs 01167542 OF 11561 61 Easement Agreement for Utilities Notice of confidentiality rights: If you are a natural person, you may remove or strike any or all of the following information from any instrument that transfers an interest in real property before it is filed for record in the public records: your Social Security number or your driver's license number. Date: July 3 , 2013 Grantor: SMILING MALLARD DEVELOPMENT, LTD., a Texas limited partnership 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. 28" Street Bryan, Texas 77803 WELLBORN SPECIAL UTILITY DISTRICT 4118 Greens Prairie Road College Station, Texas 77845 VERIZON 301 Industrial Boulevard Bryan, Texas 77803 ATMOSENERGY 297 N. Earl Rudder Freeway Bryan, Texas 77802 SUDDEN LINK 4114 E. 2Wh Street Bryan, Texas 77802 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"): Electric transmission and distribution lines; Water lines, connecting lines, access facilities, and related equipment; Television, telephone, and communications lines; Drainage ditches, drainage pipes and all other drainage structures. Consideration: Good and valuable consideration, the receipt and sufficiency of which are acknowledged by Grantor. (002025851 Doc 2k Vol Fs 0116754.2 OR 11561 62 Reservations from Conveyance: None. 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 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 duration of the Easement is perpetual. 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 Properly 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 terns 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 {00202585) 2 Doc Ek Vol Fs 01167542 OR 11561 63 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, 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 (00202585) 3 Doi_ Sk Vol Fs 01IL7542 OR 11561 64 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. 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 M. Ed Lefner,�)4drized Representative THE STATE OF TEXAS § (ACKNOWLEDGMENT) COUNTY OF BRAZOS This instrument was acknowledged before me on the 3rjday of July, 2013, by Ed Lefner, Authorized Representative of Smiling Mallard Management, LLC, General Partner of SMILING MALLARD DEVELOPMENT, LTD., on behalf of t ,e partnership. x°% sew rw racie Notary Public, State of Texas ���p 08/07/2096�n Expires (002025 4 ga��a rm mF� 051v' yG d $b 6 a ox=n a6 r 3m�$ EXHIBIT Page--—of-2—Pages 3p• ip 9vgo \ � I Is. lZp�Tia�j ✓Y��_ m Z Z y y N y y J O 6 p y a P G N N O o O v b �j y m y 0 w 0 AQ 00 Ci I 4 N� b I Doc Pk Vol Fs 01167542 DR 11561 65 W Indian Lakes Dri P332 b 0 go' R.OA " V.B7/p. 1 s _� I6 U.E LZ mx til Is ^ w�ro 3S I I ( ,.M Ada C I I m� las��mJ it A II 9 R y I a5 I esa� i I ,b Q O C, I \ 04 i e -- EXHIBIT T1 01167a42 OR 11561 166 Page Page 2 of 2 FIELD NOTES 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 1037.24 acre Tract Two described in the deed from Thousand Oaks Development Company Joint Venture to Smiling Mallard Development Ltd. recorded in Volume 4247, rage 51, of the Official Records of Brazos County, Texas (O.R.B.C.), and being more particularly described as follows: COMMENCING: at a found 1/2-inch iron rod marking the northeast comer of Lot 6, BIock 21, INDIAN LAKES SUBDIVISION, PHASE X as recorded in Volume 8270, Page 232 (O.R.B.C.); THENCE: S 09' 59' 40" W along the east line of said Lot 6 for a distance of 169.22 feet to a found 3/4- inch iron pipe at the northwest intersection of Indian Lakes Drive and Matoska Ridge Drive; THENCE: S 84' 02' 43" E along the northerly line of said INDIAN LAKES SUBDIVISION, PHASE X and said Indian Lakes Drive for a distance of 70,17 feet to a found 3/4-inch iron pipe for the POINT OF BEGINNING; THENCE: N 090 59' 40" E along the projected easterly right-of-way of said Matoska Ridge Drive for a distance of 170.98 feet and N 170 03' 35" E for a distance of 448.40 feet for corner; THENCE: S 720 56' 25" E for a distance of 20.00 feet for corner; THENCE: S 17' 03' 35" W for a distance of 447.16 feet and S 090 59' 40" W for a distance of 177.13 feet parallel to and 20 feet southeast of the said projected right-of-way of Matoska Ridge Drive; THENCE: S 360 23' 14" E for a distance of I5.21 feet for corner; THENCE: S 090 5 P 14" W for a distance of 86.95 feet for comer in the north line of Lof 40, Block 21 of said INDIAN LAKES PHASE X; THENCE: N 820 21,531, W along the north line of said Lot 40 for a distance of 5,00 feet to a found 3/4- inch iron pipe marking the southeast intersection of Indian Lakes Drive and Matoska Ridge Drive; THENCE: N 09° 51' 14" E along the easterly line of said INDIAN LAKES SUBDIVISION, PHASE X and said Indian Lakes Drive for a distance of 80.06 feet to a found 3/4-inch iron pipe for corner; THENCE: 40.30 feet in a clockwise direction along the arc of a curve having a central angle of 920 21' 32", a radius of 25.00 feet, a tangent of 26.05 feet and a long chord bearing N 36' 1 P 07" W at a distance of 36.08 feet to the POINT OF BEGINNING and containing 0.3045 acres (13264.6 sq. ft.) of land, mote or less, according to a survey made on the ground under the suuervision of Kevin u McClure, Registered Professional Land Surveyor, Stal Doc Val 01167542 BOR 11561Pg 67 Filed for Record in. BRAZOS COUNTY On: Aug 19,2013 at 02:42P As a Recordings Document Number: 01167542 Amount 40.00 Receipt Number - 481902 By1 Ashlie Bowman STATE OF TEXAS COUNTY OF BRAZOS I hereby certify that this instrument was filed an the date and time stamped hereon by me and was duly recorded in the volume and page of the Official Public records of: BRAZOS COUNTY as stamped hereon bg me. Aug IM013 Rarer NcNueent Brazas Cnunty Clerk BRAZOS COUNTY t Bill a �. =o�0000000�o: ....000�oo�000 ®®Now ®®�'■.®�■ w 0 ME ON WE 1