NON-EXCLUSIVE ACCESS EASEMENT AGREEMENT Agreement ...

NON-EXCLUSIVE ACCESS EASEMENT AGREEMENTThis Non-Exclusive Access Easement Agreement (this “Agreement”) is executed as ofthe ___ day of _______________, 2009, by and between ____________________ (“Grantor”)and BRAZOS RIVER AUTHORITY, a river authority of the State of Texas (“Grantee”)(Grantor and Grantee are sometimes referred to herein individually as a “Party” and collectivelyas the “Parties”).W I T N E S S E T H:WHEREAS, Grantee owns that certain real property located in Jack County, YoungCounty, Palo Pinto County, and Stephens County, Texas, more particularly described on Exhibit“A” attached hereto (“Grantee’s Property”); andWHEREAS, by Special Warranty Deed With Vendor’s Lien dated of even date herewith,Grantee has conveyed to Grantor that certain real property located in Young County, Palo PintoCounty, and Stephens County, Texas, more particularly described on Exhibit “B” attachedhereto (“Grantor’s Property”) which property is adjacent to Grantee’s Property and PossumKingdom Lake (the “Lake”); andWHEREAS, Grantor desires to grant to Grantee a nonexclusive access easement over andupon Grantor’s Property.NOW, THEREFORE, for and in consideration of the premises, the mutual covenants andagreements contained herein and other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the Parties agree as follows:1. Recitals. The Recitals are incorporated herein as if fully set forth.2. Grant of Access Easement. Grantor hereby grants to Grantee and its successorsand assigns, for the benefit of Grantee, Grantee’s successors and assigns, and Grantee’s agents,employees, licensees, tenants, invitees, customers and suppliers (collectively, the “GranteeParties”), a perpetual, free of charge, nonexclusive easement, license, right and privilege in, to,on, over, under, along and across Grantor’s Property, in common with Grantor, for vehicularand/or pedestrian access to and from (and from and to) Grantee’s Property for the purpose ofaccessing and maintaining Grantee’s Property and the Lake, conducting Grantee’s operations,and for public health, safety and welfare purposes (“Grantee’s Access Easement”). Grantee’sAccess Easement specifically includes the right of the Grantee Parties to traverse any portion ofGrantor’s Property, whether by use of a Road (defined below) or otherwise, including even suchareas that may be leased to third parties, as reasonably necessary to access Grantee’s Propertyand/or the Lake for the purposes set forth herein. Grantee hereby acknowledges that Grantormay make other uses of Grantor’s Property that do not unreasonably interfere with Grantee’sAccess Easement. For purposes of this Agreement, Grantee’s Property shall include thatBrazos River Authority/Access Easement

certain 1.71 acre tract owned by the Texas Electric Service Company upon which Grantee hasan easement for the construction and occupancy of a residence (a copy of such easement isattached hereto as Exhibit “C”).3. Maintenance and Interruption of Access. Grantor shall maintain and repair (orcause to be maintained and repaired), at Grantor’s cost and expense, all private roads currentlylocated or to be located upon Grantor’s Property (each a “Road”, and collectively, the “Roads”)in good repair such that Grantee’s and Grantee Parties’ vehicular access to Grantee’s Propertyand the Lake is not impaired. No walls, fences or barriers of any sort or nature shall beconstructed or erected on or over the Roads that would prevent or limit the reasonablemovement of vehicular traffic by Grantee or Grantee Parties to and from Grantee’s Propertyand/or the Lake.4. The Ranch. Notwithstanding the foregoing, Grantor and Grantee acknowledgethat some of the Roads are located within that certain subdivision (the “Ranch”) of record in PaloPinto County, Texas according to the map or plat of record in Volume 7, Page 71, Plat Recordsof Palo Pinto County, Texas, as it may be amended or modified from time to time. The portionof the Roads which are part of the Ranch are currently maintained by the Ranch’s homeownersassociation in accordance with (i) the terms of that certain Agreement by and among theAuthority, The Ranch on Possum Kingdom, L.P., and Hill Country Harbor Village, L.P. (the“Ranch Agreement”) effective as of August 1, 1997 and dated December 12, 1997, and (ii) therestrictions and covenants of that certain Declaration of Covenants, Conditions and Restrictionsfor The Ranch on Possum Kingdom Palo Pinto County, Texas (the “Ranch Declarations”) datedDecember 8, 1997, as recorded in Vol. 944, Page 403 of the Official Public Records of PaloPinto County, Texas. In addition, some of the Roads which are part of the Ranch may have gateaccess. In the event the Ranch Agreement and/or Ranch Declarations expire and/or areotherwise terminated, this Agreement shall continue in full force and effect for the Roads,including that portion of the Roads which are part of the Ranch.5. Default. In the event Grantor fails to perform any of its obligations as providedherein and such failure continues for 15 days after written notice to Grantor [or if such failurecannot be reasonably cured within such 15-day period, Grantor fails to begin to cure within such15-day period (which may include efforts to obtain bids from third parties to perform neededwork) and diligently pursue a cure until completion], then Grantee shall have the right to pursueall available equitable and legal remedies, including but not limited to injunctive relief andspecific performance. In addition, Grantee shall have the right, but shall not be obligated, to takesuch action as shall be reasonably necessary to cure the default or enforce the covenants herein,at Grantor’s sole cost and expense. Grantor shall reimburse Grantee for all costs and expensesincurred by Grantee in pursuing the remedies herein, including reasonable attorneys’ fees, within30 days after Grantee has delivered to Grantor an invoice detailing such costs and expenses.6. Dedication. Nothing contained in this Agreement shall be deemed to be a gift ordedication of any portion of Grantor’s Property to the general public for any public purposewhatsoever.2

7. Binding Effect. The provisions of this Agreement shall run with the land, and bebinding upon, and for the benefit of the Parties and their successors and assigns.8. Miscellaneous.(a) Any notice, demand, request or communication required or permittedhereunder shall be in writing and sent by hand delivery, United States certified mail, postageprepaid, or by recognized overnight delivery service, addressed as follows:If to Grantor:If to Grantee:______________________________________________________Brazos River Authority4600 Cobbs DriveP.O. Box 7555Waco, Texas 76714-7555Attn: ___________or to such other address or to the attention of such other person as hereafter shall be designated inwriting by the Parties sent in accordance herewith. Any such notice, demand, request orcommunication shall be deemed to have been given as of the date of receipt or refusal at theaddress, and in the manner, provided herein.(b) When the context in which words are used in this Agreement indicates thatsuch is the intent, words in the singular number shall include the plural and vice versa, and thewords in masculine gender shall include the feminine and neuter genders and vice versa.(c) In the event that any provision of this Agreement shall be held to beinvalid, the same shall not affect in any respect whatsoever the validity of the remainingprovisions of this Agreement.(d) This Agreement contains the entire understanding and agreement betweenthe Parties and supersedes any prior written or oral agreements between them respecting thesubject matter contained herein. There are no representations, agreements, arrangements orunderstandings, oral or written, between and among the Parties relating to the subject matter ofthis Agreement that are not fully expressed herein.(e) The failure of any Party hereto to insist upon strict performance of any ofthe servitudes, easements, privileges, rights, covenants, agreements, terms and conditionshereunder, irrespective of the length of time for which such failure continues, shall not be awaiver of any of such Party’s rights. No consent or waiver, express or implied, to or of anybreach or default in the performance of any obligation hereunder shall constitute a consent or3

waiver to or of any other breach or default in the performance of the same or any obligationhereunder.(f) This Agreement may be changed, modified or amended only by aninstrument in writing duly executed and acknowledged by the Parties.(g) This Agreement and the rights and obligations hereunder shall begoverned by the laws of the State of Texas.(h) The headings herein are inserted only as a matter of convenience and forreference and in no way define, limit or describe the scope of intent of this Agreement nor in anyway affect the terms and provisions hereof.(i) This Agreement may be executed in any number of counterparts with thesame effect as if the Parties had signed the same document. All such counterparts shall beconstrued together and shall constitute one instrument.[SIGNATURE PAGES FOLLOW]4

[SIGNATURE PAGE TO NONEXCLUSIVE ACCESS AGREEMENT]IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date firstset forth above.GRANTOR:____________________________________By:Name:Title:STATE OF TEXASCOUNTY OF ___________The foregoing instrument was acknowledged before me this ____ day of________________, 2009, by _____________________________, __________________ of____________________, a ______________, on behalf of said _______________.__________________________________Notary Public in and for the State of Texas5

[SIGNATURE PAGE TO NONEXCLUSIVE ACCESS AGREEMENT]IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date firstset forth above.GRANTEE:BRAZOS RIVER AUTHORITY, a riverauthority of the State of TexasBy:Name:Title:STATE OF TEXASCOUNTY OF ____________The foregoing instrument was acknowledged before me this ____ day of________________, 2009, by ____________________________, ____________________of Brazos River Authority, a river authority of the State of Texas, on behalf of said riverauthority.___________________________________Notary Public in and for the State of Texas6

EXHIBIT “A”LEGAL DESCRIPTION FOR GRANTEE’S PROPERTY[Description to include all property owned by BRA after the sale, including the 25’/50’ bufferstrips (if not sold), and other property that was not subject to the RFB]7

EXHIBIT “B”LEGAL DESCRIPTION FOR GRANTOR’S PROPERTY

EXHIBIT “C”TEXAS ELECTRIC SERVICE COMPANY EASEMENT TO GRANTEE