HomeMy WebLinkAboutEasementsDec -03 -04 11:52A ACKLAM CONSTRUCTION 409 690 8510
EASEMENT AGREEMENT FOR RECIPROCAL ACCESS
AND TERMINATION OF DRIVEWAY AGREEMENT
Date: September /.G , 2003
Acklam: JON ACKLAM and wife, DAWN ACKLAM
Acklam's Mailing Address: 18932 State Hwy. 6 South, College Station, TX 77845
Lee: BOBBY R. LEE and wife, PENNY M. LEE
Lee's Mailing Address: 8113 Butler Ridge, College Station, TX, 77845 -4154
Lee's Lienholder: COMPASS BANK
Lee's Lienholder's Mailing Address: P. O. Box 10566, Birmingham, AL 35296
Acklam's Property:
P.02
All of Lot Number Eight (8), Block Number Twenty -One (21), PONDEROSA PLACE, an
Addition to the City of College Station, Brazos County, Texas, according to the Plat
thereof recorded in Volume 490, Page 169, Deed Records of Brazos County, Texas.
Lee's Property:
All that certain lot, tract or parcel of land lying and being situated in Brazos County,
Texas, and being Lot Seven (7), Block Number Twenty -one (21), PONDEROSA PLACE,
an Addition to the City of College Station, Brazos County, Texas, according to the Plat
thereof recorded in Volume 490, Page 169, Deed Records of Brazos County, Texas.
Easement Property:
All that certain lot, tract or parcel of land being 0.134 of one acre situated in and being a
part of LOTS 7 and 8, BLOCK 21, PONDEROSA PLACE, an addition to the City of
College Station, Texas, according to the plat recorded in Volume 490, Page 169, Deed
Records of Brazos County, Texas, said 0.134 of one acre tract being more particularly
described by metes and bounds as follows:
BEGINNING at a point in the southwest right -of -way line of Longmire Drive for the most
northerly corner, said comer also being located in the northeast line of said Lot 7,
BLOCK 21, PONDEROSA PLACE, a 5/8" Iron Rod found for the most northerly comer of
said Lot 7 bears N 24 25'27" W a distance of 91.13 feet;
THENCE S 24 25' 27" E, along the southwest right -of -way line of said Longmire Drive
and the northeast line of said Lot 7 at a distance of 13.02 feet passing a calculated point
Easement Agreement for Reciprocal Access Page 1
and Termination of Driveway Agreement
Dec -03 -04 11:53A ACKLAM CONSTRUCTION 409 690 8510 P_03
for the most easterly corner of said Lot 7 and the most northerly comer of said Lot 8 and
continuing for a total distance of 26.04 feet to a point for the most easterly comer, a %"
Iron Rod found for the point of curvature of said Lot 8 bears S 24 25' 27" E a distance
of 45.09 feet;
THENCE S 49 20'47" W, parallel to and 12.50 feet from the northwest line of said Lot 8
a distance of 229.98 feet to a point for the most southerly corner;
THENCE N 40" 39' 13" W, a distance of 25.00 feet to a point for the most westerly
corner;
THENCE N 49 20'47" E, parallel to and 12.50 feet from the southeast of said Lot 7 a
distance of 237.26 feet to the PLACE OF BEGINNING AND CONTAINING AN AREA
OF 5841 square feet or 0.134 OF ONE ACRE OF LAND MORE OR LESS, according to
a survey performed on July 14, 2003, under the supervision of H. Curtis Strong,
Registered Professional Land Surveyor No. 4961. North Orientation is based on rotating
the northeast line of Lot 7 to plat calls in Volume 490, Page 169.
Easement Purpose: For providing free and uninterrupted pedestrian and vehicular ingress to,
egress from Acklam's Property and Lee's Property and Longmire Drive.
Consideration: The sum of TEN AND N01100 DOLLARS ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties.
Reservations from Conveyance of Acklam's Property: NONE
Exceptions to Warranty of the Acklam's Property:
This conveyance is made and accepted subject to any and all matters,
ordinances, restrictions, covenants, conditions, encumbrances, rights of way,
easements, tax liens, boundary disputes, shortages in area, matters shown on
surveys, maps or plats, encroachments, overlapping of improvements, rights of
parties in possession, maintenance charges and the lien securing said charges,
and all outstanding mineral and royalty interest, if any, affecting the Acklam's
Property, whether or not of record in the office of the Brazos County Clerk.
Reservations from Conveyance of Lee's Property: NONE
Exceptions to Warranty to Lee's Property:
This conveyance is made and accepted subject to any and all matters, ordinances,
restrictions, covenants, conditions, encumbrances, rights of way, easements, tax
liens, boundary disputes, shortages in area, matters shown on surveys, maps or
plats, encroachments, overlapping of improvements, rights of parties in possession,
maintenance charges and the lien securing said charges, and all outstanding mineral
and royalty interest, if any, affecfing the Lee's Property, whether or not of record in
the office of the Brazos County Clerk.
Easement Agreement for Reciprocal Access Page 2
and Termination of Driveway Agreement
Dec -03 -04 11:53A ACKLAM CONSTRUCTION 409 690 8510 P_04
Grants of Easements:
Acklam, for the Consideration and subject to the Reservations from Conveyance of
Acklam's Property and Exceptions to Warranty of Acklam's Property, grants, sells, and conveys
to Lee and Lee's heirs, successors, and assigns an easement to, over, and across those
portions of Acldam's Property lying within the Easement Property for the Easement Purpose and
for the benefit of Lee's Property, together with all and singular the rights and appurtenances
thereto in any way belonging, to have and to hold the easement, rights, and appurtenances to
Lee and Lee's heirs, successors, and assigns forever. Acklam binds Acklam and Acklam's
heirs, successors, and assigns to warrant and forever defend the title to the easement, rights,
and appurtenances in Lee and Lee's heirs, successors, and assigns against every person
whomsoever lawfully claiming or to claim the easement, rights, or appurtenances, or any part
thereof, except as to the Reservations from Conveyance of Acklam's Property and Exceptions
to Warranty of Acklam's Property, to the extent that such claim arises by, through, or under
Acklam but not otherwise.
Lee, for the Consideration and subject to the Reservations from Conveyance of Lee's
Property and Exceptions to Warranty of Lee's Property, grants, sells, and conveys to Acklam
and Acklam's heirs, successors, and assigns an easement to, over, and across those portions
of Lee's Property lying within the Easement Property for the Easement Purpose and for the
benefit of Acklam's Property, together with all and singular the rights and appurtenances thereto
in any way belonging, to have and to hold the easement, rights, and appurtenances to Acklam
and Acklam's heirs, successors, and assigns forever. Lee hinds Lee and Lee's heirs,
successors, and assigns to. warrant and forever defend the title to the easement, rights, and
appurtenances in Acklam and Acklam's heirs, successors, and assigns against every person
whomsoever lawfully claiming or to claim the easement, rights, or appurtenances, or any part
thereof, except as to the Reservations from Conveyance of Lee's Property and Exceptions to
Warranty of Lee's Property, to the extent that such claim arises by, through, or under Lee but
not otherwise.
The easements, rights, and appurtenances hereby granted by and between Acklam and
Lee are referred to herein as the "Easements! Those portions of Acldam's Property and Lee's
Property lying within the Easement Property are sometimes referred to herein collectively as the
'Properties' or individually as "Property." Acklam and Lee are sometimes referred to herein
individually as a "Party" and collectively as the "Parties.'
Terms and Conditions: The following terms and conditions apply to the Easements granted by
this agreement:
1. Character of Easements. The Easements are appurtenant to and run with the
Lee's Property and the Acklam's Property, and portions thereof, whether or not the Easements
are referenced or described in any conveyance of such properties, or any portion thereof. The
Easements are for the benefit of the Parties and the heirs, successors, and assigns of the
Parties who at any time own such properties or any interest therein (as applicable, the
"Holders').
Easement Agreement for Reciprocal Access Page 3
and Temanation of Driveway Agreement
Dec -03 -04 11:54A ACKLAM CONSTRUCTION 409 690 8510 P.05
2. Duration of Easements. The duration of the Easements is perpetual.
3. Nonexclusiveness of Easements. The Easements are nonexclusive, and each of
the Parties reserves for itself and its heirs, successors, and assigns the right to use all or part of
the Easements in conjunction with any other Holder and the right to convey to others the right to
use all or part of the Easements in conjunction with the Holders, as long as such further
conveyance is subject to the terms of this agreement.
4. Initial Construction of Joint Driveway. Either party, at its expense, may construct a
concrete driveway on the Easement Property ( "Driveway"), in accordance with the then current
city ordinances of the City of College Station.
5. Covenants of Parties. Each Party agrees to:
a. Maintenance Improve, repair and maintain that portion of the Driveway on
such Party's Property used for the Easements described herein in a level, smooth,
neat and clean condition. Any repairs shall be made with the type of surfacing
material originally installed or a substitute material that is equal in quality,
appearance and durability. If a Party (the "defaulting Party") fails to maintain that
portion of such Party's Property used for the Easements described herein and such
failure unreasonably interferes with the other Party's use and enjoyment of the
Easements, then the other Party (the 'repairing Party ") may make such repairs
twenty (20) days after providing the defaulting Party with written notice setting forth
the need for repairs and the repairing Party's intention to make the repairs if the
defaulting Party fails to complete such repairs within the twenty (20) day period.
The repairing Party shall do so in a good, workmanlike manner using the ordinary
and customary means common for such work in the community in which the
Easement is located and, after making such repairs, forward a statement to the
defaulting Party itemizing the costs incurred. The defaulting Party shall reimburse
the improvement, repair and maintenance costs within fifteen (15) days of receipt
of such statement from the repairing Party. All sums due for maintenance costs
from the defaulting Party to the repairing Party which are not paid within fifteen (15)
days, including interest thereon at ten percent (10%) per annum, shall constitute a
lien on such defaulting Party's property described on page 1 of this agreement
prior to all other liens and encumbrances, except for: (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 third party mortgage
vendor's lien or deed of trust.
b. Insurance Obtain and maintain public liability coverage on the Party's
Property and, upon request, provide the other Party with a certificate evidencing
such insurance coverage.
C. Taxes Pay all ad valorem taxes assessed on the Party's Property.
Easement Agreement for Reciprocal Access Page 4
and Termination ofDfivewayAgreement
Dec -03 -04 11:54A ACKLAM CONSTRUCTION 409 690 8510 P.06
d. Special Indemnity Indemnify and hold the other Party harmless from and
against all loss, liability, and expense of whatsoever nature (including reasonable
attorney's fees) to persons or property caused by, arising out of or otherwise
related to: (i) the Party's exercise of easement rights under this Agreement, (ii)
default on the terms and conditions of this Agreement, (iii) failure to comply with
applicable laws, rules, regulations and safety standards relating to it, or (iv) the
construction, repair or maintenance of such Party's Property. Notwithstanding the
foregoing, the provisions of this Paragraph 5.d. shall not apply to losses, liability
and expenses caused by or arising out of or otherwise related to the use of the
Easement by a Party's invitees, permittees, customers or other users of Party's
property described on page 1 of this agreement.
6. Rights Reserved. Each Party reserves for that Party and that Party's heirs,
successors, and assigns the right to continue to use and enjoy the surface of the Properties for
all purposes that do not unreasonably interfere with or interrupt the use or enjoyment of the
Easements.
7. Equitable Rights of Enforcement These Easements 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.
8. Attorney's Fees. If either 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.
9. Binding Effect. This agreement binds and inures to the benefit of the Parties and
their respective heirs, successors, and permitted assigns.
10. 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 other jurisdiction. Venue is in Brazos County,
Texas.
11. 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.
12. 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.
Easement Agreement for Recipmcai Access Page 5
and TemninaGon of Driveway Agreernent
Dec -03 -04 11:55A ACKLAM CONSTRUCTION 409 690 8510 P.07
13. Further Assurances. Each signatory
additional documents and instruments and to
appropriate to perform the terns, provisions,
transactions contemplated by this agreement.
Party agrees to execute and deliver any
perform any additional ads necessary or
and conditions of this agreement and all
14. 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.
15. 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.
16. 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.
17. Recitals. Any recitals in this agreement are represented by the Parties to be
accurate, and constitute a part of the substantive agreement.
18. 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.
19. Termination of Driveway Agreement. The Parties agree and intend for this
instrument to constitute a termination of the private access easements granted in the Driveway
Agreement dated December 8, 1997 between Acklam and PMF Partnership, predecessor in title
to Lee, recorded in Volume 2993, Page 62, Official Records of Brazos County, Texas (the
"Driveway Agreement"). Acldam grants, sells and conveys any rights they have in the Lee
Property by virtue of the Driveway Agreement to Lee. Lee grants, sells and conveys any rights
they have in the Aciclam Property by virtue of the Driveway Agreement to Acklam.
[Signature continue on following page]
Easement Agreement for Reciprocal Access Page 6
and Termination of Drtweway Agreement
Dec -03 -04 11:56A ACKLAM CONSTRUCTION 409 690 8510 P_08
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THE STATE OF TEXAS §
LEE:
COUNTY OF BRAZOS §
Sep }evnb 4
This document was acknowledged before me onAagaat t , 2003, by JON ACKLAM
and DAWN ACKLAM.
KIMBROUGH JE I
# NWary Public, state or Tetras
My Carmmm Expires
THE ST ItuAR 17, 2007
COUNTY OF BRAZOS §
Kota blic in and for State of Texas
Wver^ir .J - too V-
This document was acknowledged before me on AagMt 2.0 2093; by BOBBY R.
LEE and PENNY M. LEE.
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Notary Public in and for State of Texas
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Easement Agreement far Reciprocal Access
and Termination of Driveway Agreement i e NLISW4 DAVI Page 7
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JUNE 20, 2007
Dec -03 -04 11:56A ACKLAM CONSTRUCTION 409 690 8510 P.09
ATTORNEY REPRESENTATION NOTICE
DATE: .A"9 15, 2003
TO: JON ACKLAM, DAWN ACKLAM, BOBBY R. LEE AND PENNY M. LEE (hereinafter
referred to as the "Undersigned ")
FROM: CHARLES A. ELLISON, P.C. (hereinafter referred to as "Attorney")
RE: Easement Agreement for Reciprocal Access and Termination of Driveway
Agreement among the undersigned relating to the property (hereinafter referred
to as the "Property") known as Lots Number Eight (8) and Seven (7), Block
Number Twenty -one (21), PONDEROSA PLACE, an addition to the City of
College Station, Brazos County, Texas according to the Plat thereof recorded in
Volume 490, Page 169, Deed Records of Brazos County, Texas (hereinafter
collectively referred to as the "Transaction ") .
1. ATTORNEY'S CLIENT: The legal instruments involved in the Transaction have been
prepared for THRESHOLD LAND SERVICES, INC. (hereinafter referred to as the "Client') by CHARLES
A. ELLISON, P.C. The Undersigned acknowledge(s) that CHARLES A. ELLISON, P.C. has acted only
as legal counsel to the Client, and has not, in any manner, undertaken to assist or render legal advice to
the Undersigned with respect to the Transaction or with respect to any of the documents or instruments
being executed in connection therewith. The Undersigned further acknowledge(s) that the Undersigned
are aware that they may retain their own legal counsel to advise the Undersigned regarding the
Transaction and/or to review and render advice concerning any of the documents or instruments being
executed in connection with the Transaction.
2 DESCRIPTION OF LEGAL SERVICES PERFORMED: Attorney has prepared legal
instruments affecting title to the Property. It is clearly understood by the Undersigned that Attorney has
not conducted a title search with regard to the Property and does not warrant the condition of title. It is
also clearly understood by the Undersigned that Attorney has not reviewed a survey of the Property to
determine any other matters that might be revealed from a close examination of same.
Each of the Undersigned hereby acknowledges receiving and reading a copy of this Notice, and by
his/her signature affirm his/her acknowledgment of his/her right to legal counsel of histher choice and of
the accuracy of the above statements.
Attorney Representation Notice Page 1
Dawn Acklam