HomeMy WebLinkAboutAccess Agreement 04/07/2004 WED 13:39 FAX 979 693 2554 McClure & Browne Eng. 1002/009
MAR: - 10 04 (WED) 18:42 REP. FRED OW TEL:4092682155 P. 002
4 -
�JCLZ.�C �.• 2 scare Pte. 546
MUTUAL ACCESS AGE
Date: Match 1O 2004
Gat was. GATEWAY JOINT VENTURE, a Texas joint venture
Gateways MzgLng 4444 Carter Creek Parkway, 0109
Address: Bryn, Brazos Caaunty. Texas 778D2
TOC-DS: TOC-DS COMPANY, a belawarc corpQrauon
TOC MaSline One Valero Way
Address: San Antonio, Bexar County, Texas 7$249
Attention: Real Estate Department
TOC-DS Property: Lae 1 of Block A of Haney - Highway 6 Subdivision, a division of the Ciry of
College Station, Eris Comity, "texas, and being out of and a part of the
Morgan Rader League, Brazos County, TCxas according to the map or plat of
said subdivision as filed for record on July 9, 1985, in the office of the County
Clerk of Brazos County, Texas, under Pile NO. 3306] 8,
Gateway Property; Lot 2 of Block A and Lot ] of Block B of ey hlighwav 6 Subdivision, a
division of the City of College Station, Brazos County, Tents, and being out of
and a part of the Morgan Rector League, States County, Tuxes, sr-cording to
the map or plat of said subdivision. OS filed for record on July 9, 1955, in rim
or= aft County Clerk of Brazos County, Texas. under FM No 330613.
Easement Area The potions of the TOC-DS property arid the Gar 'way Properly that cross -
banebed on Exhibit A. To the extent that tha Easrmrient Arch is located on the
TOC-DS Property, it is red'err d. to herein as the "r0CDSEasement Area" and
to due extent that the Easement At is located on the Gateway Property, it is
refutttred to 8esoan as the "gateway Easement Area."
Easement Purpose: Frees and tralntmmmupted pedestrian and vehiir nlar ingness to rind egress from the
Gai property and the TOC-DS Property, to and from Texas Avenue South
and Frontage 6 Road West, which public right-of-ways are sdjacesnt to the
Gateway Property and the TOC.DS Property.
REGYTAT_S: -
A, TOC -DS is the owner of the TOGDS Property, and Gateway is the or of the
Gateway Property, whfbt is adjacenttu The TOC-DS Property.
13. Gateway has agreed to grant to TOC-DS an easement over and across the Gateway
Easement Area for the Fasersteut Purpose, and TOC-DS has agreed to grant Gateway an easement over
and across the TOC.DS Easement Area for time Easement Purpose, both on the terms and conditions set
North herein.
Munar/AeRt s .48r
gresanterrrr Pago
Store Na 546 - 3129 South Tows Avrnue, College Sr dorm, Texas
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ZOO a'ULL Sli3A1i"l cinz 9LL 6L6 YVd ST :66 170 /LO /60
04/07/2004 FEED 13:40 FAX 979 693 2554 McClure & Brune Eng. .003/009
MAR.-10'04(WED) 12:45 REP. FRED,U,OW TEL:409268, -5 P. 003
Stare No. 5
AGT!
NOW. THEREFORE, in consideration of the sum of Teo Dollars ($10.00) paid by each pant
hereso to the other. curd other goad and valuable consideration, including the mutual covenants and
agreements contained herein, the parties hereby covenant. stipulate and ag= as follows:
1_ Acraw Easement_ Each party hereby subjects its Easement Area to a papcusal, non-
exclusive easement for Ingress and egress by vehicular na i; inch:ten any emergency vehicles, over
and across the dement Area (the Easement"), The Easement shall inert to the knelt of cash party,
its successors and assrgus. and will be appurt mart to the TOC-DS Property and the Gateway Property
(vvlleetively, the "Propene`), but shalt be subject to the Other provisionC contained in this Agreement,
including those e4ntain0 in Section 2 below.
2. Restrictions_ The following erstrictiotts apply to the &setuenz
a_ The Far.: ent does not include vehicular parking rigittS Within tine Easement
Area located on a particular party's Property, and tang party will use reasonable efforts to prevent
its perm ittees from peaking within any portion eel= Easement Atha
b. Each party reserves the right to close all portions of its Easement Area for the
reasonable period of time legally neresmr y in the opinion of the party's counsel, to prevent the
acquisition of pr cripcive rights by anyone; pravIded, however, that before completely closing
off all portions of its Ea Agra, the parry shall give written notiec to each other party of its
itltentlof le do sc.
c. The Easement granted heroin is subject and Subordinate to any and all mercers of
record as of the date hereof provided however, that Gateway represents and warrants to TOG-DS
that, es of the Effective Date, there is no mortgage, deed of trust or other volanrzry lien
encumbering the Gateway Property, and TOC-DS represents and warm= to Gateway that, as of
the Effective Dare, frieze is no mortgage, deed of crust or other voluntary lien encumbering the
IOC -DS Property.
3_ Nw Eavenlent
a. Pavement of Easement Area_ Gateway has the right Lo construct a road surface
rcasofably salted for the Easement Putppse our the portion of the Easement Area shoum on
Echbit A as being contplexely filled in and labeled New Paving Area..'
b_ C a r With ! d a r t e r s _ G a t e w a y u n d e r s t a n d s , a e c n o w t e d g e s and a r s that
there is a car wash very near the New Paving Area on the TOC -DS Property, which bats
been in use for a substantial period of time prior to the date bereof (tire "Car Wash"), and
that the New Paving Ana it likely to he oonstactly wet, acrd Gatcna h apeci6Qlty
qu
reested the right m pave the New Paving Area, despite beleg aware of this eooditiolt . and
Grantee assumes all liability and responsibility la Connection therewith_ Furthermore, in
connection therewith, Gateway ogre® that the road satfaed it cnn,btrbctt on the Ncw Pavia n
it MI Will be of a siigbttiy higher garaae aleph:is downvrsrd to meet the existing paved read
surface cotVtrtleted ob the TOC -DS Property tact is immediately adjacent thereto, Such
that regular vehicular traffic Es able to drive over the boundary tine without significant
e2raucl Ace= Agreement page 2
Store No, $46 - 3129 South Texas Avenue, College Siatio4 Teats
V:ILGLGt7R \Commercial l,ra=1 EaneStifitteuAfkiscS4E6 V,Act 3 '104,dn
C OO S'lL 521aA 'rx CiteZ 9 6 L6 %Vd 2-1:60--170/L0/170
04/07/2004 WED 13:40 FAX 979 693 2554 McClure & Browne Eng. ?004/009
MAR.-10' 04 (WED) 18;43 REP. FRED BROW TEL :409268 55 P.004
Stara No. 546
sale .a but such that the pater from caws exiting the Car Walsh will tend to flow
• hark Data the TOC-DS Property.
b. Warning S Each party agrees to install eX last One appropriate (as
determined by mutual agreement of the parties) warning sign on its i'zvpery regarding The
interaction of traffic from the Car Wash and traffic using the Easement Area to access the
remainder ofthe Gateway Property.
4. Mairstsaargce. Except for the initial paving, if any done by Gateway on the New
Pavement Arca, which shall bc at Gateway's sole cost and dense. each party shall; at its own cost, kelp
the pavement located on its Easement Area rn good cond and man h its accordanec with all
applicable laws, rotas, regrtla douv and orders applicable to the Property. Notwithstanding the foregoing,
many party (or irs p fates) Causes damage to any Easement Area or flue Pavement located thercnn,
then that party shell be the cost of repauit1g that: damage, and any such repairs shall be performed as
aeon as practicable afterthe damage moors.
S. ComQlianbG witty La • • en. rash patty hereby covenants and agrees, with
respect to its Property, to comply with all laWt, rules, regulations and requiretuent8 of elf public
authorrttcs applicable to that Properly, and to indamrify, defend, find hold each other party harmless from
and against all claims, demands, losses, damages, liabilities and cxpcoscs, and all sr , actions and
judgments (including court costs and reasonable attorney's fees) arising out of or in any way related to the
indemnifying party's failure to do so. Each party shall give prompt and timely /totter to any other party
of any claim made or snit or action commenced against the ratifying party that in any way could result in
a claim for indeiituifte Lion hereunder by the party to whom notice iS given,
6_ Default Una failure bye party to perform, fu1811 or observe any agreement herein to be
perfottned, fulfilled or observed by that party (tbc Wasating Peaty"). continuing for thirty (30) days
after written notice thereof to the Defaulting Party from any other party or parties her, (the
"Notrdefaedlting Pwry") (Iwt if the cute is of a tone e such that it cannot nt=onably be =rod within flurry
(30) days, then the Defimmltiag Parry will not be iii dealt so long as it promptly commences the Cure and
canes within s reasonable period anima, not to =weed ninety (90) days after written notice thereof), the
Nondefaulting Party shall be entitled to (a) mica reasonable aoaons to cure the default; and (b) rCnovcr
from the Defaulting Patty the reasonable costs and expanses incurred In curing the default, plus interest
thereon at the highest lawful rate fr tu elan incurred. which sum shell be due end payable by the
Defaulting Party to the Nondefaulting Party within ten (10) days after receipt of notice from the
Nondefaulting Parry of the lneurreaen of those ot.tpensos. If the Defaulting Party fails to make payment
within the !On (10) -day period, then the Noadefanitiag Party shall also be entitled to recover from the
Defaulting Party its reasonable ttttarney's fuss. All sums awed by the Defaulting Parry shall bc secured
by a Lien Against the Defaulting Party's Tract. That lien shall, however, be subordinate and inferior to all
deeds of trust or mortgages heretofore or hereafter planed against that Train for the purpose of financing
or refinancing improvements thereon or to secure the purchase price dioreof and to airy and all leases of
premises, easements or restrictions now in existence or her craned before the date the sums become
due.
7. Injunctive RAW. Because the enforcement team easements and covenants sat forth in
this Agroetn= are dal for the continued protection of all present and fature owners of a ll or arty
portion of the Ptopary, it is hereby acknowledged drat nay breach by any party of those gents and/or
rover>ants Cannot be adequately eompensated by recovery of damages, and t'ierefbrc such p try, in
n
addition to all other =odies, shalt be entitled to the remedy of injcnation to regain any
or breach or threatened Violation or breach ofthe easements and the covenants provided for herein
61:itacd Access 4grecmcnt Page 3
Store No. 546 -31.29 Soule Terri Avenue, College Station, Texts
vre.t)l tyorranerturz LAReel 30104.doe
500 TZLI.L s1axkva cHcZ 9 6L6 YV,3 5x:60 PO/L0/50 ��
04/07/2004 WED 13:40 FAX 979 693 2554 McClure & Browne Eng. ?005/009
MAR. -10' 04 (WED) 18:43 REP. FREDAZOA' TEL: 40926 55 P 005
Stare No. 546
•
S. Covenants Rentripg with the Land_ The right to use and exercise the rights and
easemea herein contained, conveyed and reserved, shall, cxccpt as otherwise Indicated, run with the
land and inure to and be for the bit of cast, patty and its successors and assigns,
9. Not< Waiver_ No delay or omission of any party hereto in the exercise of any right
accruing upon any default of arty other party hereto shall impair that right or be construed to be a waiver
thereof, and every such right may bo exorcised at any time during the continua.noo of that default. A
waiver by any party hereto of a breach of, or a dcfautlt in, any of the terms and conditions of this
Agreement lay any other party hereto shall not be canstnLed to be a waiver of any subsequent breath of or
default in the same or any other prevision of this A cement_ Except as otherwise specifically provided
in this Agra:metrt, (a) no remedy provided in this Agreement shall be exclusive but each shall be
cumulative with all remedies provided in this Agreement, and (b) all remedies at law or in equity shall be.
available.
10. Non - Terminable Agreement No breach of the provisions of this Agreement shell entitle
arty party to cancel. rescind. or otherwise terminate this Agreement, but that limitation shall not affect, in
any manner, any other rights or tzmodies that any party hereto may have hereunder by reason cf any
breach ofthe provisions of this Agottment.
11. Von -Dedication. Nothing oontaineit in this Agreement shali be decreed to be a gift Or
dedication of any portion of the Property to the general phblie oz - far any public uSC or purpose
whatsoever. it bang the intention ofthe parties hereto and the successors And assigns that 'nothing in this
Agreement. expressed or implied, shall ceder upon any 1'wxm, other than the parties hereto and their
successors and assigns, any tights or remedies under or by reagaa of this Agreement.
12. ILaicxa. Any notice or designation to be given hereunder shall be iu writing and shall be
g by placing the notice oe dm-ignition in the United States mail, certified or registered, properly
stamped and addressed to the address shown on the fort page hereof, or by personal delivery by a
delivery service that documents delivery, and any such notice or designation shall be deemed to be
received the earlier of Sheba/ receipt or three (3) business days after being mallard, when malted as
provided above, or on actual receipt if given in any otter manner allowed heteender. Any ply may
change its address far notice he rsueder to any other location by the giving of thirty (30) days' notice to
the other party in the manner set forth he tinabc ve. In addition, upon the transfer of fee simple
ownership of all or any part of the Property of any party (a "` f -"), that patty purchasing the
property conveyed shall notify the other party in writing of the Transrcr, and shall include in the; notice
corresponding notice in#lutnation for all pollens who own any portion of the Property after the Transfer,
and after such notice is dclivexrl, the other patties shall be required to give Gray notices required zo the
persons and at the addresses started in that nodcc, razf,er than The notice information stated herein.
13. Status Reports, Recognizing that any party rosy find it necessary from time to rime ro
establish to potential pxuchas .tss, mortgage lendais or $ht like, the current sastnS of performance under this
A.greentent, each parry, upon the reasonable written request of any other parry, from time co •irtsc, agrees
to furnish, with reasonable promptness, a wricteb Statement on the status of any default or other
performance relating to this Azrecrneent.
14. ,1Vliscallaneiia
a. Governing Law, 'ibis Agreement shall be construed io aeoptdanae with the laws
of tile Statn of Tema.
Mcrae Acasss Agreement Page 6
Store No. 546- 31227 South Texas Avenue. College Station. Teens
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04/07/2004 WED 13:41 FAX 979 693 2554 McClure & Browne Eng, 1006/009
MAR.-40'04(WED) 16;44 REP. FRED,BROW TEL :404268 P Ont.
Score No. 546
b. Heading. The section or paragraph headings in this Agreement are far
eenveni=ec aniy, shall art ao way def ar limit the scope or content of ThiS Agreement, and
shall not be considered in anycar>,trocton or interpretation of tbis Agreement or any part hereof.
a Nn Parzaer:hip. Nothing in this Agreement shall be construed re make the
parties hereto partners or joint venbmfs or rondo arty of said parties liable for the debts or
obligations of any Other parties.
d. Amendments. This Agreement nay only be amended, modified, or terminated at
any time by written agtc.Cmen; executed and acknowledged by all the pad= to he Agreement or
Their successors or assigns and recorded in the Real Property Records of Harris County, Texas.
e. listerpretetio,z Within this Agreoneut, when recluacd by the context, each
camber (sia,tabl ' and plural) shall include all numbers tad each gander shall include all genders;
use of tbt neater shall include the feminine or the masculine, as appropriate_
f. Successors arrdaltsigns. This Agreement than bo banding upon and inure to the
benefit ofthe parties hereto end their respective Successors and assigns.
g. Counterparts. This Agreement may be nXeo&Deti in one or more counterparts,
each of which shall be duetted an original and all of which shall constitute one othd the same
Agreement with the tarmac a l=as ifall panics had signed the same original.. Any signaeare page
of this Agreement may be elcracivrd from any counterpart of this Agreement end reached to any
other aounterparrofthis Agreement Identical In forth hereto but having attached to it one or more
additional sigt1ac3re pages.
f. Attorneys' Feiss. If any eontroinersy claim, or dispute mists relating to this
Agreetneet or its breech, the prevail%ng party shall be entitled to recover from the other party
reasonable attorneys' fees, mepemscs and costs.
g_ No Partnership, Nothing in this Agreement shall be construed to make the
Parties hereto partners or joint venturers or to reader either pity liable £Dr rhe debts obligations of
the other, except as otherwise expressly provided in this Agreement:
L gnanves4nFbllow gPage)
- -
Urdu& Access Agreensoce page 5
State No. 546 - 3129 South Tsars Avenue, Came Station, Texas
vALOLCo \C.of,t cr$1J LaVaral EscareMscelha¢otoW16$646. tBat�rm cao-430<o4.dx
900 3'LLZ SliaTtlalrl CSCZ 9LL 6L6 %Vd 5i :60 1TO /LO /60
04/07/2004 WED 13:41 FAX 979 693 2554 McClure & Browne Eng. ?007/009
MAR. -1.0^ 04(WED) 18'44 REP. FREDtOW TEL'4092655 P U0
Store No. S46
Sigraturce
to
Manual Access Agreement
NESS WHEREOF. the patties have =coxed this msreturierst as of darns sot forth in
their respective Kialowledgemeets below, to be effective for all purposes, however, es of the Effective
Date_
TOC -DS:
1OGDS COMPANY,
a Delaware- corporation
Douglas Miller. its Vice Prosida 7rY
STKIE OP TEXAS
COUN'T'Y OF BEXAR
The forgoing instrument was neknowleclzed before me on March (0 It 2O 4, by Douglas M- Miller, a
Vice President ofTOC-DS COMPANY, 8 Delawtua aorpacatiop, On behalf of said co :oration.
NOtary Pab c, State of Texas
(Gateway Sigzmure and 4elvwwledgrnent on Follawfng Pa{Gd3
-a,. --lr- save - �1.
0ANTES HMS
Affill!„■• bkitaly PUPAL 1 .
Wm/ a1 OF TEXAS it
Mutual Access.4greenient -
Store Na 546 -$129 South Tens Aveauc, College Statiee, Taxes
VALLQLC ORPtCeeneedLS LeRHRcat 6seee\MizeNsecousIS46154 104 doe
L 00Ej FI.LIL CRCZ 9L 6L6 %V3 9T:60 1,0 /LO /%0
04/07/2004 WED 13:41 FAX 979 693 2554 McClure & Browne Eng, 1 008/009
MAR. —10' 04 (WED) 18:44 REP. PRED,I O? TEL: 409268 F. 008
Store No. 546
GATEWAY • 1 a '
a Texas j CM=
t atAiosift,
STATE OF ` f S §
5
COUNTY OF , tql zG , §
GATEWAY foregoing l a instrument W85 wl �eo f AY
tl��rR�� r JOINT VEN U Q a Texas joint
� ��s �.r
venture, on behalf of said joint vcuutto.
( AL._ Cc_ a. . .
Notary ubli- State of
•
Joyce A. PIRWIl2 '
m MOWPUNK ITv
tafeantnimien
2 z. Z
MA=1 Access dgreegrog
Shwa No. 546 - 3129 Souls Teems Avenue, Cpllege Static; Texas
fault atf sfe lC:= sue. = a-030WAGS
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