Form 26-25

This form is used to convey the sole privilege of making the uses of the grantor’s land that are autho­rized in the form. Neither the grantor nor any other person except the grantee is entitled to make such uses. Examples are for uses of the land covered by the easement for a sign, billboard, cell tower, or wind turbine.

Easement in Gross Agreement

Notice of confidentiality rights: If you are a natural person, you may remove or strike any or all of the following information from any instrument that transfers an interest in real property before it is filed for record in the public records: your Social Security number or your driver’s license number.

Date:

Grantor:

Grantor’s Mailing Address:

Grantee:

Grantee’s Mailing Address:

[Grantor’s Lienholder:]

[Grantor’s Lienholder’s Mailing Address:]

Grantor’s Property: All of the property described in Exhibit A, attached hereto and incorpo­rated herein.

Easement Property: All of the property within Grantor’s Property as described in Exhibit B, attached hereto and incorporated herein, and as much of the remainder of Grantor’s Prop­erty as may be reasonably necessary for ingress and egress by Grantee, its employees, agents, and contractors to and from the Easement Property, to construct, install, operate, maintain, inspect, repair, and replace the Facilities, ONLY to the extent that the Ease­ment Property is not accessible by using existing rights-of-way, streets, roads, drive­ways, and parking areas to the maximum extent reasonably possible.

Easement Purpose: For the installation, construction, operation, maintenance, replacement, repair, upgrade, and removal of [specify, e.g., a tower, billboard, sign, wind turbine] and related equipment (collectively, the “Facilities”).

Consideration: Good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Grantor.

Reservations from Conveyance: [Describe here or in an attached exhibit any reservations from the conveyance in this instrument.]

Exceptions to Warranty: [Describe here or in an attached exhibit any exceptions to the warran­ties in this instrument.]

Grant of Easement: Grantor, for the Consideration and subject to the Reservations from Con­veyance and Exceptions to Warranty, grants, sells, and conveys to Grantee and Grantee’s heirs, successors, and assigns an easement over, on, and across the Easement Property for the Easement Purpose, together with all and singular the rights and appurtenances thereto in any way belonging (collectively, the “Easement”), to have and to hold the Easement to Grantee and Grantee’s heirs, successors, and assigns forever. Grantor binds Grantor and Grantor’s heirs, successors, and assigns to warrant and forever defend the title to the Easement in Grantee and Grantee’s heirs, successors, and assigns against every person whomsoever lawfully claiming or to claim the Easement or any part thereof, except as to the Reservations from Conveyance and Exceptions to Warranty [include if applicable: , to the extent that such claim arises by, through, or under Grantor but not otherwise/, without express or implied warranty. All warranties that might arise by common law and the warranties in Section 5.023 of the Texas Property Code (or its successor) are excluded].

Terms and Conditions: The following terms and conditions apply to the Easement granted by this agreement:

1.Character of Easement.      The Easement and related rights granted by Grantor in this agreement to Grantee are an [exclusive/nonexclusive] and irrevocable easement in gross for the benefit of Grantee and its successors and assigns, as owner of the rights created by the Easement in gross, and is exclusive and irrevocable (as applicable, the “Holder”). The Ease­ment and related rights granted by Grantor in this agreement are binding on Grantor; on the Grantor’s heirs, legal representatives, successors, and assigns; and on all future owners of the Easement Property. This Easement and other rights granted by Grantor in this agreement are independent of any lands or estates of interest in lands; there is no other real property benefit­ting from the Easement granted in this agreement.

2.Assignment.      Grantee may assign, sublease, license, transfer, or convey its inter­est in this agreement or any part of its interest in the Easement without Grantor’s consent, pro­vided that the assignee or transferee shall be subject to all of the obligations, covenants, and conditions applicable to Grantee.

3.Duration of Easement.      [The duration of the Easement is perpetual./The duration of the Easement is for [number] years beginning [date].]

4.Improvement and Maintenance of Easement Property.      Improvement and main­tenance of the Easement Property and the Facilities will be at the sole expense of Holder. Holder has the right to eliminate any encroachments into the Easement Property that interfere with the Easement Purpose. Holder must maintain the Easement Property in a neat and clean condition. Holder has the right to construct, install, maintain, replace, and remove the Facili­ties on, under, or across any portion of the Easement Property. All matters concerning the Facilities and their configuration, construction, installation, maintenance, replacement, and removal are at Holder’s sole discretion, subject to performance of Holder’s obligations under this agreement. Holder has the right to remove or relocate any fences within the Easement Property or along or near its boundary lines if reasonably necessary to construct, install, main­tain, replace, or remove the Facilities, subject to replacement of the fences to their original condition on the completion of the work.

5.Equitable Rights of Enforcement.      This Easement 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.

6.Attorney’s Fees.      If [either/any] 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.

7.Binding Effect.      This agreement binds, benefits, and may be enforced by the par­ties and their respective heirs, successors, and permitted assigns.

8.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. Venue is in the county or counties in which the Easement Property is located.

9.Counterparts.      This agreement may be executed in multiple counterparts. All counterparts taken together constitute this agreement.

10.Waiver of Default.      A default is not waived if the nondefaulting party fails to declare default immediately or delays in taking any action with respect to the default. Pursuit of any remedies set forth in this agreement does not preclude pursuit of other remedies in this agreement or provided by law.

11.Further Assurances.      Each signatory party agrees to execute and deliver any additional documents and instruments and to perform any additional acts necessary or appro­priate to perform the terms, provisions, and conditions of this agreement and all transactions contemplated by this agreement.

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. The obligations of the parties under this provision will survive termination of this agreement.

13.Survival.      The obligations of the parties in this agreement that cannot be or were not performed before termination of this agreement survive termination of this agreement.

14.Entire Agreement.      This agreement and any exhibits are the entire agreement of the parties concerning the Easement Property and the grant of the Easement by Grantor to Grantee. There are no representations, agreements, warranties, or promises, and neither party is relying on any statements or representations of the other party or any agent of the other party, that are not expressly set forth in this agreement and any exhibits.

15.Legal Construction.      If any provision in this agreement is 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. 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 given (whether received or not) the earlier of receipt or three business days after being 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, or e-mail and will be effective when received. Any address for notice may be changed by written notice given as provided herein.

   
[Name of grantor]

   
[Name of grantee]

Consent and Subordination by Lienholder

Lienholder, as the holder of [a] lien[s] on the Easement Property, consents to the above grant of an Easement, including the terms and conditions of the grant, and Lienholder subordi­nates its lien[s] to the rights and interests of Holder, so that a foreclosure of the lien[s] will not extinguish the rights and interests of Holder.

   
[Name of lienholder]

Exhibit A

Description of Grantor’s Property

Exhibit B

Description of Easement Property