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HomeMy WebLinkAboutAccess Easement Agreement Doc Bk Vol Pig 00885312 OR 6569 208 ACCESS EASEMENT AGREEMENT DATE: March 1 ( , 2005 GRANTOR (including address): BCSTX HOSPITALITY, LLC, a Texas limited liability company, 713 South May Street, Madisonville, Madison County, TX 77864 GRANTEE (including address): HOPE PREGNANCY CENTERS OF BRAZOS VALLEY, INC., a Texas non - profit corporation, 205 Brentwood Drive East, College Station, Brazos County, TX 77840 DOMINANT ESTATE PROPERTY (including any improvements): Lots Twenty -three (23) through Twenty -seven (27), Block One (1), Brentwood, Section One, a subdivision in the City of College Station, Brazos County, Texas, according to plat thereof recorded in Volume 335, Page 313 of the Deed Records of Brazos County, Texas. EASEMENT PROPERTY: All that certain tractor parcel of land situated in the City of College Station, Brazos County, Texas out of and a part of the Morgan Rector League A -46 containing a part of Lot 21R as described in a deed to BCSTX Hospitality, L.L.C., recorded in Volume 6219, Page 71 of the Official Records of Brazos County, Texas ( O.R.B.C.) and as shown on Replat of Lot 5 of a Resubdivision Plat of Herman F. Krenek Subdivision Phase Two and Lot 21 and 22, Block One (1), Brentwood, Section One (1) as recorded in Volume 6112, Page 149, O.R.B.C. and being more particularly described as follows: BEGINNING at a 'h" iron rod found in the northeast line of Brentwood Drive East for the south corner of this tract, also being the east corner of the Brentwood III, Ltd. tract (Lots 13- 20, Block One (1), Brentwood, Section One (1)) recorded in Volume 3849, Page 171, O.R.B.C.; THENCE along the southwest line of this tract N 48° 11' 30" W, 70.00 ft to a 1 /2" iron rod set for the west corner of this tract, also Tying in the northeast line of the said Brentwood III, Ltd. tract; THENCE severing the said BCSTX Hospitality, L. L.C. tract N 41° 48' 30" E, 50.00 ft to a 5/8" iron rod set for the north corner of this tract, also Tying in the southwest line of the Hope Pregnancy Centers of Brazos Valley, Inc. tract (Lots 23 -27, Block One (1), Brentwood, Section One (1)) recorded in Volume 3365, Page 079, O.R.B.C.; THENCE along the northeast line of this tract S 48° 11' 30" E, 70.00 ft to a 5/8" iron rod set for the east corner of this tract, also being the south corner of the said Hope Pregnancy Centers of Brazos Valley, Inc. tract, also lying in the northwest line of Brentwood Drive East; THENCE along the northwest line of Brentwood Drive East S 41° 48' 30" W, 50.00 ft to the PLACE OF BEGINNING, containing 0.080 acres of land. Doc Bk Vol Pg 00885312 OR 6569 209 EASEMENT PURPOSE: For providing free and uninterrupted pedestrian and vehicular ingress and egress between the Dominant Estate Property, and portions thereof, and Brentwood Drive, College Station, Texas. CONSIDERATION: Cash in hand paid, the further consideration of the easement grant and the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged and stipulated. RESERVATIONS FROM AND EXCEPTIONS TO CONVEYANCE AND WARRANTY: A. Reservations. Grantor reserves the following rights: (1) Reserved Rights. For Grantor and Grantor's 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 prohibit the use or enjoyment of the easement. (2) Nonexclusive Rights. For Grantor and Grantor's successors and assigns forever, the right to convey the same or other rights and easements to others as an appurtenant easement, 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; 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, to have and hold it to Grantee, Grantee's successors, or assigns forever. Grantor binds Doc Bk Vol Pg 00885312 OR 6569 210 Grantor and Grantor's successors and assigns to warrant and forever defend all and singular the easement to Grantee and Grantee's 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. Agreements of Grantor. Grantor agrees to: a. Maintenance. Improve, repair and maintain the Easement Property in a neat and clean condition at Grantor's sole expense, however, these obligations will be shared proportionately by others (but not Grantee) who have rights in and to the Easement Property. b. Construction and Design. Bear all costs associated with the design and construc- tion of the access way and closing the existing driveway on the Dominant Estate to Brentwood Drive. The construction performed pursuant to this Easement Agreement shall be done in a good and workmanlike manner to a standard and /or quality approved by Grantee and consistent with the driveways, landscaping and other improvement now existing on Grantee's tract. Grantor agrees to use commercially reasonable efforts to limit the disruption to the Dominant Estate property during the construction. 2. Limitations on Grantor. Grantor agrees not to: a. Interference. Interfere with or interrupt the use or enjoyment of the easement. b. Gates. Place any gate or other obstruction across the Easement Property. 3. Agreements of Grantee. Grantee agrees to: a. Cooperation. Cooperate with Grantor in the closing of the existing driveway access to Brentwood Drive following completion of construction of the new drive over the Easement Property. b. Improvements. Without Grantor's prior written consent, place any other improve- ments or utilities in the Easement Property. 4. Limitations on Grantee. Grantee agrees not to: a. Gates. Place any gate or other obstruction across the Easement Property. b. Hazardous Materials. Cause or knowingly authorize environmentally hazardous materials to be transported on the easement; and c. Nuisance. Knowingly cause, authorize, or fail to halt any common law nuisance to occur on the Easement Property. Doc Bk Vol Pg 00885312 OR 6569 211 5. 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. c. Exclusiveness of Easement. The easement is nonexclusive. d. 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. e. 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. f. Limitation on Assignment & Exercise. Any assignments or exercise of this easement by Grantee or of the 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. In the event of any interference or threatened interference with the easement, it may be enforced by restraining orders and injunctions (temporary or permanent) prohibiting such interference and commanding compliance with its terms, which restraining orders and injunctions will be obtainable upon proof of the existence of such interference or threatened interference, and without the necessity of proof of inadequacy of legal remedies or irreparable harm, and will be obtainable only by the holder or lienholder of the easement or part of it; provided, however, this is not 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. 3. Binding Effect. This Agreement is binding upon and will inure to the benefit of the parties hereto and their respective successors and assigns where not prohibited by this Agreement; thus, the term "Grantor" and "Grantee" includes the successors and assigns of each party. Doc Bk Vol Pg 00885312 OR 6569 212 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 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. Doc Bk Vol Pg 00885312 OR 6569 213 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. GRANTOR: BCSTX HOSPITALITY, LLC, a Texas limited liability company B - 1 1 , .ir. NITIN PATEL, Manager GRANTEE: HOPE PREGNANCY CENTERS OF BRAZOS VALLEY, I By: /1r �i , Exe ; • , e P ector THE STATE OF TEXAS § COUNTY OF BRAZOS § This instrument was acknowledged before _ is the 1/ • - of March, 2005, by NITIN PATEL, Manager of BCSTX HOSPITALI i, Texas • i • % compa on behalf of said limited liability company. / /f ��j '. %s`, ` BARBARA GIE P LAG � z' - f ' ,,, `'"`', NOTARY No - ry - u • Iic, Stat- .f Te as / *i %.o % * ; State of Texas �`.Z 0 ,. Comm. Exp. 09 -30 -20 THE STATE OF TEXAS § COUNTY OF BRAZOS § This instrument was acknowledged before me on this the / day of March, 2005, by JIM PYE, Executive Director of HOPE PREGNANCY CENTER OF BRAZOS VALLEY, INC., a Texas non - profit corporation, on behalf of said corp. ration. 4_110741 ,i_ 4 <,_ ,/i e/ • £, `; CINDY ANN BALLENTINE Nota /� ublic, State of Texas w Nd Pub1c, SIW o T exas V' • 1 :Commission Expires MARCH d, 2007