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PURCHASE
OPTION WITH AGREEMENT
FOR
RECIPROCAL EASEMENTS
This Purchase Option with Agreement for Reciprocal
Easement (this "Agreement") is dated effective as of
______________, 2000, by and among Bourland Field, Inc.,
a Texas corporation ("BFI") and Bourland Field Estates
Homeowners’ Association, Inc., a Texas non-profit
corporation ("Association").
I.
RECITALS
1.1 Airport Tract. BFI is the owner of certain
real property (the "Airport Tract") located in Parker
County, Texas, more particularly described on Exhibit
"A" attached hereto and made a part hereof.
1.2 Runway Tract BFI is the owner of certain
real property (the "Runway Tract") located in Parker
County, Texas as more particularly described on Exhibit
"B" attached hereto and made a part hereof upon which
there is currently constructed an FAA approved aircraft
runway, which Runway Tract is wholly included within the
boundaries of the Airport Tract.
1.3 Association The Association is mandatory
membership association that is comprised of all of the
owners of property within Bourland Field Estates and it
is acting in such representative capacity in behalf of
the menbers of the Association with respect to this
Agreement.
1.4 Purpose. BFI has agreed to grant to the
Association a purchase option to acquire the Runway
Tract and the Association has agreed that if it
exercises the Purchase Option that it will
simultaneously enter into a non-exclusive reciprocal
easement agreement with BFI for aircraft access,
ingress, egress and regress on, across and over the
Airport Tract and the Runway Tract pursuant to the
terms, covenants and conditions contained herein and BFI
and the Association have agreed to the other matters
contained herein.
II.
AGREEMENTS
NOW, THEREFORE, in consideration of the above mutual
covenants contained in this Agreement, the parties agree
as follows:
2.1 Definitions. The following terms, as used
in this Agreement, shall have the following meanings:
"Common Areas" shall mean those portions of
the Airport Tract and the Runway Tract that are used in
conducting aircraft flight operations for the
non-exclusive general use, convenience and benefit of
BFI and the Association and their Permittees including
the runway and taxiways. The Common Areas shall not
include any portion of any Parcel which is intended for
the exclusive use of one or more Permittees.
"Governmental Requirements" shall mean all
laws, ordinances, statutes, codes, rules, regulations,
orders and decrees of the United States, the state,
county, city of any other political subdivision in which
the parcels are located and any other political
subdivision, agency or instrumentality exercising
jurisdiction of the Parcels (including, without
limitations, all laws, ordinances, statutes, codes,
rules, regulations, orders, and decrees regarding
aircraft operations, the environment or zoning).
"Owner" shall mean BFI and the Association
upon exercise of the Purchase Option and any and all
successors in interest, grantee’s or assigns of BFI and
the Association as owner or owners of fee simple title
to all or any portion of the Parcels whether by sale,
assignment, inheritance, operation of law, trustee sale,
foreclosure or otherwise. The term "Owner" shall not
include the holder of any lien or encumbrance on real
property or any Permittee.
"Parcel" shall mean each separately identified
parcel of real property now or hereafter constituting of
the Airport Property or the Runway Property.
"Permittee" shall mean (i) the tenants or
occupants of a Parcel, (ii) the respective employees,
agents, contractors, customers, invitees, and licensees
of BFI and (iii) the members of the Association and
their guests.
2.2 Purchase Option. BFI hereby grants to the
Association the option (the "Option") to purchase the
Runway Tract for a period of one year following the date
of death of the survivor of Richard L. Bourland and
Barbara Jane Bourland (the "Option Period") on the
following terms and conditions.
a. Exercise. In order to exercise the Option,
the Association must provide written notice (the "Option
Notice") to the personal representative of the estate of
Richard L. Bourland or Barbara Jane Bourland whoever be
the survivor, or their heirs if no personal
representative of the survivor’s estate is appointed, at
any time thirty (30) days prior to the expiration of the
Option Period.
b. Purchase Price. The purchase price for the
Runway Tract (the "Purchase Price") shall be for the sum
of One Hundred Dollars ($100) to be payable in cash or
in immediately available funds on Closing (as herein
defined).
c. Closing Date. The Closing of the
Association’s purchase of the Runway Tract (the
"Closing") or ("Closing Date") shall occur on or before
the sixtieth (60th) day following the date the Option
Notice is delivered (or the next succeeding business
day, if any such day is not a business day), unless BFI
and the Association mutually agree to a different time,
date or location for the Closing.
d. Items to be delivered by BFI at Closing. At
Closing, BFI shall deliver the following:
(i) A Special Warranty Deed (the "Deed") conveying
good, marketable and fee simple title to the Runway
Tract free and clear of all liens, tenancies, licenses,
claims and encumbrances of any kind except for the
easements to be granted as herein provided and any
encumbrances permitted by the Association.
(ii) A Certificate from BFI that it is not a foreign
corporation, foreign partnership, foreign trust or
foreign estate as such terms are used in the Internal
Revenue Code and the Regulations promulgated thereunder.
(iii) An Owner’s Policy of Title Insurance (the
"Title Insurance Policy") from a title insurance company
reasonably satisfactory to the Association in the amount
of the Purchase Price insuring fee simple title to the
Runway Tract subject only to the reciprocal easements to
be granted by the Association hereunder and such other
permitted encumbrances and the standard exceptions from
coverage contained in the Title Insurance Policy.
(iv) A Seller’s Closing Statement.
All such documents shall be duly executed and where
appropriate, acknowledged and shall be in form and
substance reasonably satisfactory to the Association.
BFI shall provide the Association with drafts of all of
the foregoing documents except the Closing Statement for
review not later than ten (10) days before the Closing
Date.
e. Items to be Delivered by the Association at
Closing. At Closing the Association shall deliver
the following:
(i) The Purchase Price.
(ii) A Buyer’s Closing Statement.
Such documents shall be duly executed and where
appropriate, acknowledged and shall be in form and
substance reasonably satisfactory to BFI.
f. Payment of the Closing Costs. Costs of
Closing shall be borne as follows:
(i) BFI shall pay for the recording cost of the Deed,
costs of the Title Insurance Policy (provided the
Association shall pay for the cost of the so-called
survey deletion if the Association elects to obtain a
survey of the Runway Tract and requests a modification
of the Title Insurance Policy), one-half of the cost of
any escrow fee charged by the title company issuing the
same and its own attorneys’ fees.
(ii) The Association shall pay one-half of the cost
of any escrow fee charged by the title company, the cost
of any survey commissioned by the Association and if
obtained by the Association, the cost of obtaining the
so-called survey deletion to the Title Insurance Policy,
the cost of any tests, studies or reports commissioned
by the Association in connection with the purchase of
the Runway Tract and its own attorneys’ fees.
All costs not specifically addressed above shall be
borne by BFI or the Association or shared between them
in accordance with local practice.
d. Remedies. If either party fails or refuses
to close the Purchase Option on exercise other than
default of the other party, the party desiring to close
may invoke as its sole and exclusive remedy the remedy
of specific performance.
2.3 Grant of Easements. In the event the
Association shall exercise the Purchase Option, and only
in such event, BFI and the Association shall
simultaneously with the closing of the Purchase Option
grant and reaffirm to each other the following
easements:
a. By Association on Runway Tract. The
Association grants to BFI a perpetual non-exclusive
easement for the purposes described in Section 2.4
below, over and across the Common Areas existing from
time to time within the Runway Tract.
b. By BFI. BFI reaffirms to the Association a
perpetual non-exclusive easement for the purposes
described in Section 2.4 below, over and across the
Airport Tract to the runway Tract within the "Access
Easement Area" as described in that certain First
Amentment To and Restatement Of Access Easement
Agreement And Covenant To Pay Maintence Costs dated
________, ______, 2000 recorded in Volume ______, Page
______, between the Owners ("Exsisting Agreement") as
the same may be amended from time to time hereafter.
2.4 Purpose of Easements. The easements
described in Section 2.3(a) and (b) above, shall be for
the purpose of aircraft ingress and egress for BFI and
the Association and their respective Permittees.
2.5 Maintenance and Repairs.
a. Airport Tract. BFI shall maintain in good
condition and repair all Common Areas and any
improvements within the Airport Tract in a manner
consistent with its existing maintenance in the Airport
Tract and sufficient to conduct safe aircraft flight
operations within the Runway Tract and as may be
required by the FAA or any other Governmental
Requirement relating to the Airport Tract.
b. Runway Tract. The Association shall
maintain in good condition and repair all Common Areas
and any improvements within the Runway Tract in a manner
consistent with the existing maintenance in the Airport
Tract and sufficient to conduct safe aircraft flight
operations within the Runway Tract and as may be
required by the FAA or any other Governmental
Requirement relating to the Runway Tract.
c. General Requirements. The maintence of the
Common Areas shall include without limitation,
maintaining and repairing the surface of all access,
drives, taxi areas, runway surfaces, tetrahedrons,
windsocks, VASIs, lighting and drainage improvements.BFI
and the Association agree to prorate the maintence costs
within the Common Areas based upon the respective use by
each party with such proration of maintence costs to be
determined and paid not less frequently than anually by
March 15 of each year based upon each parties actual
paid expenses for the previous year. The cost of
maintence within the Common Areas shall specifically
exclude ad valorem taxes and the cost of insurance as
provided in Section 2.9 of this Agreement
d. Damages. If, as a part of construction or
in connection with the use of any Common Area, an Owner
or any of its Permittees damages another Parcel or any
improvements thereon, then the Owner shall at its
expense promptly repair those damages.
2.6 Alteration of Common Areas. Each party
shall have the right to make alterations to the Common
Areas within its parcel, so long as the alterations do
not materially interfere with the benefits of the
easements provided in Section 2.3 above and that
otherwise meet all governmental requirements and the
requirements of this Agreement. No party shall construct
or maintain any fence, partition or similar barrier
within the Common Areas, as would unreasonably interfere
with the use and enjoyment of the Common Areas by the
other party or its Permittees.
2.7 Term of Easements. The reciprocal
easements and rights-of-way granted in this Agreement
are appurtenant to and run the title to the Airport
Tract and Runway Tract. Each party to this Agreement
binds itself, its successors and assigns to warrant and
forever defend the reciprocal easements and
rights-of-way granted in this Agreement unto the other
parties and their successors and assigns against every
person whomsoever lawfully claiming or to claim the same
or any part thereof by, through or under BFI and the
Association respectively, but not otherwise.
2.8 Private Use. Nothing contained in this
Agreement shall ever be deemed to create a gift or
dedication of all or any portion of the Airport Tract or
the Runway Tract to the general public or for any public
use or public purpose whatsoever. It is the intention of
the parties that this Agreement shall be for the
exclusive benefit of the parties and their respective
Permittees, successors and assigns. Nothing contained in
this Agreement shall confer upon any person or entity,
other than BFI or the Association and their respective
successors and assigns, any rights or remedies under or
by reason of this Agreement.
2.9 Insurance. Throughout the term of this
Agreement, each Owner shall procure and maintain (or
cause to be procured and maintained) commercial general
liability insurance against claims for personal injury,
death or property damage occurring upon that Owner’s
Parcel with a combined single limit coverage of not less
than One Million Dollars ($1,000,000) and which name the
other Owner as additional insured. Every five (5) during
the term of this Agreement, the Owners shall evaluate
the levels of insurance required above and shall adjust
them if necessary to maintain the level of coverage on
the Parcels to an amount reasonably necessary to conform
to then prevailing market standards. Each Owner shall
furnish to the other Owner evidence that the insurance
policies required under this Agreement are in full force
and effect and all applicable premiums have been paid in
full. The insurance required by this Section 2.9 will
not provide coverage for liability resulting from the
act or negligence of the additional insured.
2.10 Indemnification. Each Owner shall
indemnify and hold the other Owner(s) and their
Permittees harmless from and against all claims,
liabilities and expenses (including reasonable
attorney’s fees) relating to accidents, injuries, loss
or damage of or to any person or property arising from
or in any manner relating to the use of any portion of
the Parcel owned by that Owner or from or as a result of
any act or negligence of the indemnifying Owner or that
Owner’s Permittees, except claims, accident, injuries,
loss or damage arising from or as a result of any act or
negligence of the indemnified Owner or that Owner’s
Permittees, employees, agents or contractors.
2.11 Remedies.
a. In the event of a breach or threatened breach by
any Owner or its Permittees of any of the terms,
restrictions or conditions of this Agreement the other
Owner(s) and their Permittees shall be entitled to full
and adequate relief by injunction and/or other available
legal and equitable remedies from the consequence of the
breach, including payment of any amounts due and/or
specific performance other than any other right or
remedy which would allow this Agreement to be canceled,
rescinded or otherwise terminated.
b. In addition to all other remedies available, at
law or in equity, upon the failure or a defaulting Owner
to cure breach of this Agreement with thirty (30) days
following written notice thereof by an Owner (unless,
with respect to any such breach the nature of which
cannot reasonably be cured within the 30-day period, the
defaulting Owner commences such cure within such 30-day
period and thereafter diligently prosecutes such cure to
completion), any Owner shall have the right to perform
such obligation contained in this Agreement on behalf of
such defaulting Owner and be reimbursed by such
defaulting Owner upon demand for reasonable costs
thereof, together with interest at the discount rate of
the Federal Reserve Bank of Dallas, Texas, plus three
(3) percentage points (not to exceed the maximum rate of
interest allowed by law).
2.12 No Effect on Lien. No breach under this
Agreement shall defeat or render invalid the lien of any
mortgage of deed of trust upon any Parcel made in good
faith for value, but the easements, covenants and
conditions and restrictions hereof shall be binding upon
and effective against the Owner of such Parcel covered
hereby whose title thereto is acquired by foreclosure,
trustee’s sale or otherwise.
2.13 Miscellaneous.
a. Term. This Agreement shall be effective
commencing on the date of recordation in the Offices of
the County Clerk of Parker County, Texas, and shall
continue in perpetuity unless this Agreement is
modified, amended, canceled or terminated by written
consent of all Owners of the Parcels in accordance
subparagraph (d) of this section below.
b. Notices. Any notice to be given by any
party under this Agreement shall be in writing and shall
be delivered in person or forwarded by certified or
registered mail, postage prepaid, return receipt
requested, or by receipted, overnight courier, at the
address indicated below, unless the party giving such
notice has been notified in writing of a change of
address.
Bourland Field, Inc.
17611 Highway 377 South
Fort Worth, Texas 76126
Attention: President
Bourland Field Homeowners’ Association, Inc.
18001 Highway 377 South
Fort Worth, Texas 76126
Attention: President
Any such notice shall be deemed effective on the date
on which such notice is delivered, if notice is given by
personal delivery, or if notice is sent through the
United States mail on the date of actual delivery as
shown by the addressee’s receipt or upon the first date
of refusal to accept delivery, whichever date first
occurs. Parties to this Agreement may change its address
for notices by giving the other parties entitled to
notice under this Agreement by any means permitted
pursuant to this section, and any such change of address
shall be effective as of ten (10) days after the date of
such notice.
c. Attorneys’ Fees. In the event a party
institutes any legal action or proceeding for the
enforcement of any right or obligation contained in this
Agreement, the prevailing party shall be entitled to
recover its costs and reasonable attorneys’ fees
incurred in the preparation and prosecution of such
action or proceeding.
d. Amendment. The provisions of this Agreement
may be modified, canceled, terminated or amended in
whole or in part, only by the written consent of all
Owners of the Parcels evidenced by a document that has
been fully executed and acknowledged by all Owners and
recorded in the Official Records of the County Clerk of
Parker County, Texas.
e. Consents and Estoppels. Whenever in this
Agreement the consent or approval of an Owner is
required, unless otherwise expressly provided in this
Agreement, that consent or approval shall not be
unreasonably withheld or delayed. Except as otherwise
provided in this Agreement, if any person having the
right or consent or approval under this Agreement fails
to respond to that right or give that consent or
approval or specific grounds for disapproval, within the
applicable time period (or if no time period is
provided, within fifteen (15) days from receipt of the
request therefor), the person shall be deemed to have
given its approval of consent. Any request for consent
or approval shall (a) be in writing; (b) specify the
section of this Agreement which requires that the notice
be given or that consent or approval be obtained;
(c) state that the failure to respond to the notice or
request within the stated time period shall be deemed
the equivalent of the recipient’s approval or consent to
the subject matter of the notice or request for approval
or consent; and (d) be accompanied by background
information as is reasonably necessary to make an
informed decision thereon. From time to time at the
request of any Owner, the other Owners will within
fifteen (15) days of the receipt of a request, execute,
having acknowledged and delivered a certificate stating
(i) whether this Agreement is still in effect,
(ii) whether this Agreement has been amended in any
respect and, if so, submitting copies of or otherwise
identifying the amendment; (iii) whether, within the
knowledge of the Owner there are any existing breaches
or defaults by another party under this Agreement and,
if so, stating default within reasonable peculiarity;
and (iv) such other information pertaining to this
Agreement as the Owner may reasonably request.
f. No Waiver. No waiver of any default of any
obligation by any Owner shall be implied from any
omission by any other Owner to take any action with
respect to the default.
g. No Agency or Partnership. Nothing in this
Agreement shall be deemed or construed to create the
relationship of principal and agent or of limited or
general partners of joint ventures or of any other
occasion between any Owner and another Owner or third
person or entity.
h. Covenants Run With the Land. It is intended
that each of the easements, covenants, conditions,
restrictions, right and obligations set forth in this
Agreement shall run with and bind the land and create
equitable servitude in favor of and appurtenant to the
real property benefited thereby, shall bind every person
having any fee, leasehold or other interest therein and
insure to the benefit of the respective parties and
their successors, assigns, heirs, grantees and personal
representatives.
i. Grantee’s Acceptance. The grantee of any
Parcel or any portion thereof by acceptance of a deed
conveying title thereto or the execution of a contract
for the purchase thereof, whether from an original party
or from a subsequent Owner of that Parcel, shall accept
the deed, assignment or contract upon and subject to
each, and by acceptance agrees to all of, the easements,
covenants, conditions, restrictions and obligations
contained in this Agreement. By its acceptance any
grantee or assignee shall, for itself, its successors
and assigns, heirs and personal representatives, be
deemed a covenant, consent and agree to keep, observe,
comply with and perform the obligations and agreements
set forth in this Agreement as an Owner with respect to
the property so acquired by the grantee.
j. Severability. Each provision of this
Agreement and the application thereof to the parcels are
hereby declared to be independent of and severable from
the remainder of the Agreement. If any provision
contained in this Agreement shall be held to be invalid
or to be unenforceable or not to run with the land, such
holding shall not affect the validity or enforceability
of the remainder of this Agreement. In the event the
validity or enforceability of any provision of this
Agreement is held to be dependent upon the existence of
a specific legal description, the parties agree to
promptly cause such a legal description to be prepared.
k. Time is of the Essence. Time is of the
essence of this Agreement. If performance of any part of
this Agreement falls on a Saturday, Sunday or legal
holiday, performance may be extended to the next
business day after the Saturday, Sunday or legal
holiday.
l. Entire Agreement. This Agreement contains
the complete understanding and agreement of the parties
hereto with respect to all matters referred to in this
Agreement and all prior representations, negotiations
and understandings are superseded hereby.
m. Governing Law. The laws of the State of
Texas (except "choice of law" provisions) shall govern
the interpretation, validity, performance and
enforcement of this Agreement.
n. Effect on Other Instruments. Any mortgage,
deed of trust or other instruments which shall be
executed after the date of this Agreement, affecting any
portion of a parcel, shall at all times be subject and
subordinate to the terms of this Agreement. Each Owner
shall upon request of another Owner use reasonable
efforts to obtain written confirmation of that
subordination in recordable form from any mortgagee,
trustee or other party obtaining an interest in any
portion of a parcel. Any party foreclosing any mortgage
of deed of trust affecting any portion or a parcel or
acquiring title thereto by deed in lieu of foreclosure
or at a trustee’s sale, shall acquire title subject to
all the terms and provisions of this Agreement, except
then accruing and owing obligations of the parties
foreclosed.
BOURLAND FIELD, INC., a Texas corporation
By:
Richard L. Bourland, President
BOURLAND FIELD ESTATES HOMEOWNERS’
ASSOCIATION, INC., a Texas non-profit corporation
By:
Richard L. Bourland, President
THE STATE OF TEXAS §
§
COUNTY OF TARRANT §
This instrument was acknowledged before me on the
_______ day of __________________, 2000, by Richard L.
Bourland, President of Bourland Field, Inc., a Texas
corporation, on behalf of said corporation.
Notary Public -- State of Texas
THE STATE OF TEXAS §
§
COUNTY OF TARRANT §
This instrument was acknowledged before me on the
_______ day of __________________, 2000, by Richard L.
Bourland, President of Bourland Field Estates
Homeowners’ Association, Inc., a Texas non-profit
corporation, on behalf of said corporation.
Notary Public -- State of Texas
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