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HomeMy WebLinkAboutCOVENANTS & RESTRICTIONSRECIPROCAL PARKING, ACCESS AND EASEMENT AGREEMENT AND COVENANTS, CONDITIONS AND RESTRICTIONS This Reciprocal Access Easement Agreement and Covenants, Conditions and Restrictions ( "Agreement ") is executed by and between 615 EUD, LLC, a Texas limited liability company ( "615 EUD ") and HASSAN KAZEROUNI ( "KAZEROUNI "). RECITALS 615 EUD owns the following described real property located in Brazos County, Texas (the "615 EUD Property "): 9.2751 acres of land, more or less, Amending Final Plat of Randall's University Park, an addition to the City of College Station, Texas, according to plat thereof recorded in Volume 2189, Page 249 of the Official Records of Brazos County, Texas, KAZEROUNI owns the following described real property located in Brazos County, Texas (the " KAZEROUNI Property "): Lot , a subdivision in the City of College Station, Texas, according to the map or plat thereof recorded in Volume , Page , Plat Records of Brazos County, Texas. The 615 EUD Property consists of a shopping center with two buildings and parking areas serving the two buildings (collectively, the "Shopping Center "), and 615 EUD has conveyed the KAZEROUNI Property to KAZEROUNI, which conveyance included one of the buildings in the Shopping Center. This is an agreement intended to allow 615 EUD and KAZEROUNI to have certain reciprocal and other rights regarding ingress and egress on, over and across each others property and use of parking areas, as well as to set forth certain agreements between the parties regarding parking rights, shared maintenance costs, use and parking limitations, restrictions and similar issues relating to the sale by 615 EUD to KAZEROUNI of the KAZEROUNI Property. The KAZEROUNI Easement and the 615 EUD Easement described below are sometimes collectively referred to herein as the "Easements ". For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, 615 EUD and KAZEROUNI hereby agree as follows: ARTICLE ONE ACCESS EASEMENTS, PARKING RIGHTS, USE AND LIMITATIONS 1.01. Grant of Cross Access Easement from 615 EUD to KAZEROUNI. Subject to the limitations, reservations and other terms and provisions of this Agreement, 615 EUD grants, sells, and conveys to KAZEROUNI and KAZEROUNI's successors and assigns a non- exclusive easement and right -of -way over, on, and across the 615 EUD Property for common use of certain parking areas and for ingress and egress in certain locations, such parking areas and locations to be substantially as set forth in the site plan attached hereto marked Exhibit "A" and 1 made a part hereof (the "Site Plan "), for the benefit of the KAZEROUNI Property, together with all and singular the rights and appurtenances thereto in any way belonging (collectively, the " KAZEROUNI Easement "), to have and to hold the KAZEROUNI Easement to KAZEROUNI and KAZEROUNI's successors and assigns forever. 615 EUD binds 615 EUD and 615 EUD's successors and assigns to warrant and forever defend the title to the KAZEROUNI Easement to KAZEROUNI and KAZEROUNI's successors and assigns against every person whomsoever lawfully claiming or to claim the KAZEROUNI Easement or any part thereof, except as to the Reservations from Conveyance and Exceptions to Warranty. 1.02. Grant of Cross Access Easement from KAZEROUNI to 615 EUD. Subject to the limitations, reservations and other terms and provisions of this Agreement, KAZEROUNI grants, sells, and conveys to 615 EUD and 615 EUD's successors and assigns (and tenants and occupants of the Shopping Center) a non - exclusive easement and right -of -way over, on, and across the KAZEROUNI Property for common use of parking areas and for ingress and egress at certain locations, such locations to be substantially as set forth in the Site Plan, for the benefit of the 615 EUD Property, together with all and singular the rights and appurtenances thereto in any way belonging (collectively, the "615 EUD Easement "), to have and to hold the 615 EUD Easement to 615 EUD and 615 EUD's successors and assigns forever. KAZEROUNI binds KAZEROUNI and KAZEROUNI's successors and assigns to warrant and forever defend the title to the 615 EUD Easement to 615 EUD and 615 EUD's successors and assigns against every person whomsoever lawfully claiming or to claim the 615 EUD Easement or any part thereof, except as to the Reservations from Conveyance and Exceptions to Warranty. 1.03. Limitations on the KAZEROUNI Easement granted and Use of Parking Areas by KAZEROUNI, and Other Restrictions; Reservation of Rights by 615 EUD. The following are limitations and restrictions with regard to the conveyance and use of the KAZEROUNI Easement and the rights relating thereto: (a) 615 EUD shall be only required to provide to KAZEROUNI access to 120 non- reserved parking spaces of the Shopping Center, and any parking spaces or parking areas that were conveyed to KAZEROUNI as part of the KAZEROUNI Property shall be included in the calculation of such 120 parking spaces. Use of such parking spaces by KAZEROUNI is on a non- exclusive and non - reserved basis as other tenants of the Shopping Center have rights to use parking spaces of the Shopping Center, including such 120 parking spaces, except as otherwise limited as set forth in this Section. KAZEROUNI shall be allowed access to use other parking areas of the Shopping Center, subject to the rights of other tenants of the Shopping Center to use such parking areas, subject to the rights retained by 615 EUD as set forth below and subject to the following terms and conditions: Due to the rights of other tenants of the Shopping Center, during the first nine (9) years after the Effective Date of this Agreement (the "Reserved Rights Period "), (i) 615 EUD shall only be required to provide to KAZEROUNI access to a maximum of 70% of the parking spaces of the Shopping Center (the 120 spaces parking spaces referenced above shall be included in the calculation of the 70 %), provided, however, in the event that KAZEROUNI or a family member of KAZEROUNI or an entity in which the KAZEROUNI or a family member owns an interest sells all or a part of the KAZEROUNI Property to an a third party, person or entity that is not unaffiliated or is not controlled by KAZEROUNI or a family VJ member of KAZEROUNI, these rights shall automatically terminate and be of no further force and effect and KAZEROUNI agrees to execute and deliver, or cause to be executed and delivered, a release of such parking rights in a form approved by 615 EUD, and (ii) 615 EUD may reserve use of up to 30% of the parking spaces of the Shopping Center for any purposes whatsoever, including assigning reserved spaces to tenants and occupants of the Shopping Center. After the Reserved Rights Period, KAZEROUNI shall have access to all of the parking spaces of the Shopping Center on an non - reserved and non - exclusive basis and 615 EUD shall continue to have all of the rights set forth in Section 1.03(c) below, subject to the other terms, provisions, limitations and retained rights set forth in this Section 1.03, provided, however, in the event 615 EUD does use, eliminate or reserve any parking spaces of the Shopping Center so that KAZEROUNI no longer has access to such parking spaces ( "615 EUDs Reserved Parking Spaces "), KAZEROUNI shall be allowed to reserve for its own use a similar percentage of its guaranteed 120 parking spaces ( "KAZEROUNI's Reserved Parking Spaces ") and KAZEROUNI and 615 EUD agree to execute any documents reasonably required to acknowledge and identify both 615 EUD's Reserved Parking Spaces and KAZEROUNI's Reserved Parking Spaces, and 615 EUD and KAZEROUNI agree that to the extent possible, KAZEROUNI's Reserved Parking Spaces shall be located in front of and to the side of the KAZEROUNI Property. For purposes of the calculation of the percentages described herein, 615 EUD and KAZEROUNI agree to use the figure of 479 parking spaces currently existing in the common areas of the Shopping Center, and examples of the calculation are as follows: Example One If 615 EUD's Reserved Parking Spaces amount to 80 spaces, 615 EUD would be using 16.70% of the parking spaces available (80/479), and thus KAZEROUNI would be allowed to designate 16.70% of its guaranteed 120 parking spaces, or 20 spaces (rounded up or down as is customary), as KAZEROUNI's Reserved Parking Spaces. Example Two If 615 EUD decided to use, eliminate or reserve all of the parking spaces of the Shopping Center as 615 EUDs Reserved Parking Spaces (other than KAZEROUNI's 120 guaranteed parking spaces), then KAZEROUNI would be allowed to designate all of KAZEROUNI's 120 guaranteed parking spaces as KAZEROUNI's Reserved Parking Spaces; (b) The rights of tenants, occupants and owners of the Shopping Center; (c) The following rights which are hereby retained and reserved by 615 EUD for all intents and purposes, which rights could affect the current parking and common areas of the Shopping Center: 615 EUD retains the right for itself and its successor and assigns to expand and/or add to current buildings and improvements on the Shopping Center (which would expand the footprint of the current buildings and improvements located on the Shopping Center), to construct additional buildings, structures or improvements on the parking and common areas of the Shopping Center (including but not limited to pad sites for new businesses) and to construct or allow other structures and improvements on the parking and common areas of the Shopping Center, including but not limited to tents and portable buildings, for such periods of time and under such terms and agreements within the sole discretion of 615 EUD, any of which could reduce the size of the parking and common areas and/or the number of parking spaces available for use in the Shopping Center, either on a temporary or permanent basis. In no event, however, shall 615 EUD use or allow the use of the parking areas of the Shopping Center that would reduce KAZEROUNI's access to at least 120 non - exclusive and non - reserved parking spaces 3 described in Section 1.03 (a) above; and (d) The rights being granted to KAZEROUNI herein are further limited to non- exclusive access and parking rights only except as specifically described in this Section 1.03, and KAZEROUNI shall have no right to use the parking areas and common areas of the Shopping Center for any other purposes, including but not limited to, the construction or use of temporary or permanent improvements or structures thereon, including but not limited to, tents, portable buildings or similar structures or improvements. 1.04. Reservations from Conveyance and Exceptions to Warranty. In addition to the reservations and exceptions set forth in Section 1.03 above, the following are additional reservations from the conveyance of the Easements and exceptions to the warranties given in connection with the Easements: any and all rights not specifically conveyed herein and all easements, rights of way, prescriptive rights, restrictions, reservations, covenants, conditions, mineral interests, royalty interests, and other instruments, other than conveyances of the surface fee estate or leases, that affect the 615 EUD Property or the KAZEROUNI Property, as shown of record in the office of the County Clerk of Brazos County, Texas, or that may be apparent on the 615 EUD Property or the KAZEROUNI Property. /:�C7J l TIT B 11IAVC SHARED MAINTENANCE AREA AND MAINTENANCE COSTS 2.01. Shared Maintenance Area. KAZEROUNI agrees to share the costs to maintain, repair and improve the parking areas and common areas of the Shopping Center pursuant to the KAZEROUNI Easement granted herein and the other rights granted in this Agreement to KAZEROUNI ( "Shared Improvements ") located within the Shared Maintenance Area (the "Shared Maintenance Area" is the parking areas and common areas of the Shopping Center as same are shown on the Site Plan but not including the portion of those areas that are a part of the KAZEROUNI Property). In this regard, 615 EUD and KAZEROUNI agree as follows: 2.02. Maintenance; Payment for Maintenance. 615 EUD and KAZEROUNI agree that the Shared Improvements and the parking areas on the KAZEROUNI Property shall be maintained in good condition. KAZEROUNI shall, at KAZEROUNI's sole cost and expense, shall perform the services or cause the services to be performed in connection with the maintenance, repair, replacement and improvement of the parking areas on the KAZEROUNI Property. 615 EUD and KAZEROUNI agree that costs will need to be incurred periodically to pay for the following costs relating to maintaining, repair, replacement and improvement of the Shared Improvements (collectively, "Maintenance Costs "): (a) repairs needed to fix potholes, surface defects or other defects in the Shared Improvements, (b) re- paving and re- striping of the Shared Improvements, (c) lighting in the Shared Maintenance Area, (d) sweeping and cleaning the Shared Maintenance Area, and (e) elimination of any hazards or obstructions in the Shared Maintenance Area, including removal of ice and surface water. KAZEROUNI shall reimburse 615 EUD for KAZEROUNI's pro -rata share of the Maintenance Costs, with such payment to be made within thirty (30) days after the delivery of an invoice to KAZEROUNI. KAZEROUNI's 4 pro -rata share of the Maintenance Costs will be based on the ratio the square footage of the buildings located on the KAZEROUNI Property (calculated at 11,243 square feet for purposes of this Agreement) bears to the total square footage of all buildings on the 615 EUD Property (calculated at 91,721 square feet for purposes of this Agreement). As a consequence, KAZEROUNI's pro -rata share of the Maintenance Costs shall be 12.26 %. 2.03. Assignment of Maintenance Obligations. 615 EUD shall have the right to assign its obligations set forth in this Article Two as to the Shared Improvements to an owner's association or property owner's association that may be formed or established to provide such services, among other services that may be provided by such association. Any such assignment shall relieve 615 EUD of its obligations and any liability associated therewith under this Article Two, effective as of the date of such assignment. 2.04. Maintenance of KAZEROUNI Property. KAZEROUNI, as to the KAZEROUNI Property, agrees to maintain the KAZEROUNI Property and parking areas located thereon in good and clean condition and in a good state of repair, and to promptly repair any potholes or other defects in the parking areas located on the KAZEROUNI Property, in the same manner as contemplated in Section 2.02 relating to the Shared Improvements and Shared Maintenance Area. ARTICLE THREE COVENANTS, CONDITIONS AND RESTRICTIONS 3.01 Use Restrictions for KAZEROUNI Property. 615 EUD and KAZEROUNI agree to the following covenants, conditions and restrictions ( "Restrictions ") with regard to the KAZEROUNI Property: (a) Commercial Use. The KAZEROUNI Property shall be restricted to use for commercial purposes only. No other uses or purposes shall be allowed without the prior consent of 615 EUD. (b) Other restrictions on Use. The KAZEROUNI Property may not be used all or in part for any of the following purposes: (i) a lounge or bar or other similar establishment unless the lounge or bar or similar establishment is part of a restaurant where sales of alcoholic beverages represents less than fifty percent (50 %) of its annual gross sales, (ii) a use involving the sale, rental, distribution, display or exhibiting of, or otherwise relating to, erotic books, erotic posters or other erotic written or recorded material or other forms of erotic entertainment or to sell, rent or display motion pictures, discs, video tapes or records which are not rated "G ", "PG" or "R" by the Motion Picture Association of America or other duly constituted censorship body, (iii) operation of a retail grocery supermarket occupying more than 500 square feet of floor space, or (iv) theatre, bowling alley, health spa, or skating rink. The terms "erotic" and "erotic forms of entertainment" as used herein shall include an adult type bookstore or other establishment selling, renting, displaying or exhibiting pornographic or obscene materials (including 61 without limitation, magazines, books, movies, videos, photographs or so called "sexual toys ") or providing adult type entertainment or activities (including, without limitation, any displays or activities of a variety involving, exhibiting or depicting sexual themes, nudity or lewd acts). 3.02. Restrictions to Run With the Land; Termination and Automatic Extension. These Restrictions shall run with and bind the KAZEROUNI Property and shall inure to the benefit of and be enforceable by the owners of the 615 EUD Property and the KAZEROUNI Property and their respective heirs, successors, and assigns, for a term of thirty (30) years from the date of this Agreement, after which time these Restrictions shall automatically be extended for successive periods of ten (10) years each unless the then owner of the 615 EUD Property and the KAZEROUNI Property shall agree to terminate these Restrictions and an instrument signed by such owners has been recorded in the Deed Records of Brazos County, Texas. 3.03. Amendments. These Restrictions may be amended and/or modified only by the prior written approval of all of the then owners of the 615 EUD Property and the KAZEROUNI Property. No amendment shall be effective until there has been recorded in the Deed Records of Brazos County, Texas, an instrument executed and acknowledged by all of such owners and setting forth the amendment. Notwithstanding the provisions of this Section, 615 EUD may execute and record amendments to the Restrictions without the consent or approval of KAZEROUNI if the amendment is for the purpose of correcting technical or typographical errors or for clarification only. 3.04. Enforcement. These Restrictions shall be enforced by any proceeding at law or in equity against any entity, person or persons violating or attempting to violate them, or to recover damages, or to enforce any rights created by these Restrictions; and failure by any owner of the 615 EUD Property or the KAZEROUNI Property to enforce any of the Restrictions herein contained shall in no event be deemed a waiver of the right to do so thereafter. ARTICLE FOUR MISCELLANEOUS PROVISIONS 4.01. Ownership of 615 EUD Property. 615 EUD covenants that 615 EUD is the owner of fee simple title to the 615 EUD Property, that the conveyance of the KAZEROUNI Easement is legally binding upon 615 EUD without the necessity of the approval, consent or joinder of any other person, party, authority or entity except any lienholder described below, and that the undersigned representative has the full power and authority to execute this instrument on behalf of 615 EUD. 4.02. Ownership of KAZEROUNI Property. KAZEROUNI covenants that KAZEROUNI is the owner of fee simple title to the KAZEROUNI Property, that the conveyance of the 615 EUD Easement is legally binding upon KAZEROUNI without the necessity of the approval, consent or joinder of any other person, party, authority or entity except any lienholder described below, and that the undersigned representative has the full power and authority to execute 2 this instrument on behalf of KAZEROUNI. 4.03. Character of Easements. The KAZEROUNI Easement is appurtenant to and runs with all or any portion of the KAZEROUNI Property, whether or not the KAZEROUNI Easement is referenced or described in any conveyance of all or such portion of the KAZEROUNI Property. The KAZEROUNI Easement is for the benefit of KAZEROUNI and KAZEROUNI's heirs, successors, and assigns who at any time own the KAZEROUNI Property or any interest in the KAZEROUNI Property. The 615 EUD Easement is appurtenant to and runs with all or any portion of the 615 EUD Property, whether or not the 615 EUD Easement is referenced or described in any conveyance of all or such portion of the 615 EUD Property. The 615 EUD Easement is for the benefit of 615 EUD and 615 EUD's heirs, successors, and assigns who at any time own the 615 EUD Property or any interest in the 615 EUD Property. The Easements are nonexclusive and irrevocable except as otherwise specifically set forth in this Agreement. 4.04. Duration of Easement. The duration of the Easements is perpetual, except as otherwise specifically set forth in this Agreement.. 4.05. Equitable Rights of Enforcement. The Easements and rights granted herein 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. 4.06. Attorney's Fees. If either party retains an attorney to enforce this Agreement, the party prevailing in litigation or a legal proceeding is entitled to recover reasonable attorney's fees and court and other costs from the non - prevailing party. 4.07. Binding Effect. This Agreement binds and inures to the benefit of the parties and their respective heirs, successors, and assigns. 4.08. 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. 4.09. 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 will be construed together and will constitute one and the same instrument. 4.10. Waiver of Default. It is not a waiver of or consent to a default if the non- defaulting 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. 4.11. Further Assurances. Each party agrees to execute and deliver any additional documents and instruments, and to perform any additional acts necessary or appropriate to perform or carry out the transactions contemplated by this Agreement or the rights, duties and obligations of the parties to this Agreement, or to clarify the terms, provisions, and conditions of this Agreement and the intentions of the parties to this Agreement. 4.12. Indemnity. Each party agrees to indemnify, defend, and hold harmless the other party from any loss, attorney's fees, expenses, or claims attributable to breach or default of any provision of this Agreement by the indemnifying party. 4.13. Integration. This Agreement contains the complete agreement of the parties and cannot be varied except by written agreement of the parties. The parties agree that there are no oral agreements, representations, or warranties that are not expressly set forth in this Agreement. 4.14. 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. 4.15. Notices. All notices, demands and requests required or permitted to be made or given hereunder shall be in writing and addressed to the party to whom the notice is to be delivered and shall be deemed to have been properly delivered and received: (1) as of the date of actual delivery to the addresses set forth below if personally delivered or delivered by courier service, (2) two (2) business days after (a) deposited in a regularly maintained receptacle for the United States mail, certified mail, return receipt requested and postage prepaid, or (b) deposited with Federal Express or similar overnight delivery system for overnight delivery with all costs prepaid, or (3) as of the date transmitted by facsimile or telecopy transmission to the facsimile or telecopy numbers set forth below. All notices, demands and requests required or permitted to be made or given hereunder shall be addressed as follows: 615 EUD, LLC 6907 N. Capital of Texas Highway Suite 370 Austin, Texas 78131 Fax: HASSAN KAZEROUNI 601 University Drive East Suite College Station, TX 77840 Fax: Any address or fax number for notice may be changed upon five (5) days prior written notice delivered as provided herein. 14.16. Recitals. Any recitals in this Agreement are represented by the parties to be accurate, and constitute a part of the substantive Agreement. 14.17. 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. 14.18. Entire Agreement; Amendments or Modifications. This Agreement contains the entire agreement between the parties relating to the Easements and other matters described herein. Any oral representations or oral modifications concerning this Agreement shall be of no force and effect. All amendments or modifications hereto must be in writing and signed by 615 EUD, KAZEROUNI and their respective lienholders, if applicable. 14.19. Assignments. This Agreement and the rights granted herein maybe assigned in whole or in part by 615 EUD or by KAZEROUNI; provided, however, that such assignee must agree in writing to assume all of the duties and obligations of the assigning parry under this Agreement as to the assigned portion, which written assumption agreement must be delivered to the non - assigning parry, along with appropriate contact information for notice purposes. 14.20. Lienholders. The holders of liens against the 615 EUD Property or the KAZEROUNI Property, if any ( "lienholders ") have acknowledged their approval of this Agreement and their agreement to be bound by the terms hereof by execution of this Agreement in the spaces set forth below. EXECUTED on the dates set forth below but to be effective as of the date of the last party below to sign this Agreement (the "Effective Date "). (signature pages attached) 615 EUD, LLC, a Texas limited liability company By: GST Management, LLC, a Texas limited liability company, Its Manager By: Date: 1 2013 J. Kelly Gray, Manager STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on the day of , 2013, by J. Kelly Gray, Manager of GST Management, LLC, a Texas limited liability company, on behalf of said company as Manager of 615 EUD, LLC, a Texas limited liability company, on behalf of said company. Notary Public, State of Texas Print name: My commission expires: Date: 2013 HASSAN KAZEROUNI 10 STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on the day of 2013, by HASSAN KAZEROUNI. Notary Public, State of Texas Print name: My commission expires: AGREED AND APPROVED BY LIENHOLDERS: 11 Lienholder for 615 EUD, LLC: Print Name: Title: Lienholder's Mailing Address: Date: 2013 STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on the day of 2013, by (title) of , a national banking association, on behalf of said association. Notary Public, State of Texas Print name: My commission expires: Lienholder for HASSAN KAZEROUNI 12 B Date: 9 2013 Print Name: Title: Lienholder's Mailing Address: STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on the day of 2013, by , (title) of , a national banking association, on behalf of said association. Notary Public, State of Texas AFTER RECORDING, RETURN TO: Print name: My commission expires: EXHIBIT "A" 13 (attach Site Plan) 14