2009R43 - Lone Star PetRESOLUTION NO. 09-R-43
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING THE CITY MANAGER TO ACCEPT
A DECLARATION OF RESTRICTIVE COVENANTS, AND OTHER
MATTERS IN CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City") has determined that the City
should accept a Declaration of Restrictive Covenants regarding parking facilities to permit 414
Partnership, Ltd., which owns the land on which Lone Star Pet Supply operates, to expand and
operate the facilities leased by Lone Star Pet Supply in a manner that will not cause it to be a
non-conforming use; and
WHEREAS, the City Council has determined that it is in the best interest of the City to
accept the Declaration of Restrictive Covenants attached hereto as Exhibit A (the "Declaration").
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to accept the
Declaration by 414 Partnership, Ltd. in substantially the form set forth on Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
Resol 09-R~3.doc
PASSED AND ADOPTED, this 1St day ^f Ca„tamhar ~nnq
ATTEST:
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City Secretary
(CITY SEAL)
Reso109-R-43.doc
EXHIBIT A
DECLARATION OF RESTRICTIVE COVENANTS
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DECLARATION OF RESTRICTIVE COVENANTS
STATE OF TEAS §
~O>'1~TT'Y~F G~UADALUPE §
T DE LARATION OF RESTRICTIVE COVENANTS ("Declaration") is made on
the d~.te ~e_°rein er set forth by 414 Partnership, Ltd., a Texas limited partnership, hereinafter
,`~eferred >¢~.s the nitial "Declarant".
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• Definitions
• 1. ~' "declarant" shall mean 4i4 Partnership, Ltd., a Texas limited partnership, owner
on the date hereof of the .Property, as hereinafter defined, and successors and assigns of
Declarant who acquire fee title to all or a portion of the Property. For purposes of enforcement
of paragraph 8 of the General Provisions of this Declaration and actions to be taken in the future,
"Declarant" shall mean all persons and/or entities which are then collectively the owners of the
Property.
2. "Property" shall refer to:
"Tract I": Lot 5, Block 3, Lone Star Pet Supply Subdivision, Schertz, Guadalupe County,
Texas, as the same is shown and designated on the plat recorded in Volume 5, Page 279B, and as
being more particularly shown on Exhibit "A"; and
"Tract II": Lot 19, Block 2, Lone Star Pet Supply II Subdivision, Schertz, Guadalupe
County, Texas, as the same is shown and designated on the re-plat recorded in Volume 7, Page
363, and as being more particularly shown on Exhibit "B".
Recitals
1. Declarant is the owner of the Property.
2. Declarant previously constructed a 92,095 square foot, more or less, warehouse
and office building on Tract 1 (the "Building").
3. Declarant has proposed constructing an approximately 34,924 square foot
addition to the Building (the "Addition").
4. The Addition was approved by the City of Schertz, Texas (the "City") in
connection with the City's original approval of the site plan for the Building on November 25,
1997 (the "1997 Approval").
Declaration of Restrictive Covenants.doc
Declaration of Restrictive Covenants
YO12789 p60887
5. The City has determined that, after the construction of the Addition, there will not
be sufficient parking on Tract I to meet the parking requirements in the City's current Unified
Development Code.
6. As a result of the 1997 Approval, the City will issue the required building permit
for the Addition, and, assuming the Addition is constructed in accordance with the approved
plans and applicable building codes, the City will issue a certificate of occupancy for the
Addition, notwithstanding the insufficient parking on Tract I; however, unless Declarant makes
arrangements to provide sufficient parking, the Building, with the Addition, will be a permitted
non-conforming use on Tract I.
7. Declarant has proposed constructing certain improvements on Tract II (the
"Improvements") for automobile, vehicle, and truck parking for Tract I so that the Building, with
the Addition, will be a conforming use on Tract I.
8. Declarant currently leases Tract I to Lone Star Pet Supply, Ltd., LLP ("Lone
Star") and expects to lease Tract II to Lone Star.
9. It is the desire and intention of Declarant that all of the Property shall be subject
to the restriction hereinafter set forth in this Declaration, which is and for the benefit of the
Property, the owners thereof, subsequent owners of the Property, and tenants having leasehold
rights to Tract I.
10. The following restriction shall run with the Property and shall be binding on all
parties having any right, title, or interest in the Property in part or in whole, and their heirs,
personal representatives, successors, and/or assigns.
Restrictions
1. Parking -Declarant agrees that Tract II shall be used for automobile, vehicle, and
truck parking for Tract I until such time that (i) Declarant provides alternative automobile,
vehicle, and truck parking for Tract I such that Tract I will have sufficient automobile, vehicle,
and truck parking available to it without taking into account the parking on Tract II to comply
with the City's Unified Development Code; (ii) the use of Tract I changes such that parking on
Tract I is sufficient to meet the City's Unified Development Code without taking into account
the parking on Tract II; and/or (iii) the City's Unified Development Code changes in such a way
that there is sufficient parking on Tract I to meet the parking requirements in then current
Unified Development Code without taking into account the parking on Tract II. The City agrees
to release, in recordable form, this Declaration and restrictive covenant upon the occurrence of
any one of the preceding events, by countersigning a Termination of Declaration of Restrictive
Covenants in the real property records of Guadalupe, County, Texas.
General Provisions
1. GOVERNING LAW -THIS DECLARATION SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
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Declaration of Restrictive Covenants 2
~Ot2789 P60888
STATE OF TEXAS. ALL ACTS REQUIRED OR PERMITTED TO BE PERFORMED
~ HEREUNDER ARE PERFORMABLE IN GUADALUPE COUNTY, TEXAS, AND IT IS
o AGREED THAT ANY ACTION BROUGHT TO ENFORCE OR CONSTRUE THE TERMS
-- OR PROVISIONS HEREOF OR TO ENJOIN OR REQUIRE THE PERFORMANCE OF ANY
a ACT IN CONNECTION HEREWITH SHALL BE BROUGHT IN A COURT OF
p COMPETENT JURISDICTION SITTING IN GUADALUPE COUNTY, TEXAS.
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r 2. Construction & Severability - If this Declaration or any word, clause, sentence,
o paragraph or other part thereof shall be susceptible to more than one or conflicting
?- interpretations, then the interpretation which is more nearly in accordance with the general
purposes and objectives of this Declaration shall govern. In the event one or more of the
provisions contained in this Declaration shalt for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any
other provision hereof and this Declaration shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
3. Unintended Omission - If any punctuation, word, clause, sentence, or provisions
necessary to give meaning, validity, or effect to any other word, clause, sentence, or provision
appearing in this Declaration shall be omitted herefrom, then it is hereby declared that such
omission was unintentional and that the omitted punctuation, word, clause, sentence or provision
shall be supplied by inference.
4. Recordation -This Declaration shall be recorded in the Guadalupe County Real
Property Records.
5. Amendment -The covenants, conditions, and restrictions of this Declaration may
not be amended, except by an instrument signed by Declarant and the City, and recorded in the
Guadalupe County Real Property Records.
6. Assigntnent. The initial Declarant and any subsequent Declarant may assign to its
successor its rights and obligations under this Declaration.
7. Termination -This Declaration may be terminated by an instrument signed by
Declarant and the City, and recorded in the Guadalupe County Real Property Records.
8. Notice -Any formal notices or communication with respect to the subject matter
of this Declaration shall be delivered by one of the following methods:
(a} by delivering the same in person;
(b) by depositing the same in the United States mail, certified or registered,
return receipt~requested, postage prepaid, addressed to the parry to be notified at the address set
forth below; or
Deciazation of Restrictive Covenants.doc
Declaration of Restrictive Covenants 3
VOt2789 P60889
(c) by depositing the same with a nationally recognized courier; service
guaranteeing "next day delivery", addressed to the party to be notified at the address set forth
below.
Notice given in any other manner shall
party to be notified. For the purposes of notice
provided below, shall be as follows:
be effective only if and when received by the
the addresses of the parties, until changed as
Declarant:
414 Partnership, Ltd.
Attention: Dennis W. Stahl
17414 Triton Drive
Schertz, Texas 78154
Telephone: 210-651-4414
Fax: 210-651-5910
With Copy to:
James S. Cheslock
The Kreager Law Firm
7373 Broadway, Suite 500
San Antonio, Texas 78209
Telephone: 210-829-7722
Fax: 210-821-6672
City
City of Schertz, Texas
1400 Schertz Parkway
Schertz, Texas 78154
Attention: City Manager
The parties may, from time to time, change their respective mailing addresses, and each
has the right to specify as its address any other address within the United States of America by
giving at least five days written notice to the other party.
9. Enforcement -Declarant and the City shall have the right and power to enforce
any of the restrictions set out in this Declaration. Enforcement of this Declaration and the
restrictions set forth herein shall be by any proceeding at law or in equity against any person or
persons violating or attempting to violate any of the same, either to restrain violation or to
recover damages. Failure by Declarant or the City to enforce any such restriction shall in no
event be deemed a waiver of the right to do so thereafter. Any remedies provided for in this
Section are cumulative and shall be deemed additional to any and all other remedies to which
Declarant or the City may be entitled in law or in equity and shall include the right to restrain by
injunction any violation or threatened violation by any party of any of the terms, covenants, or
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Declaration of Restrictive Covenants 4
Y~12789 PG08~90
conditions of this Declaration and by decree to compel performance of any such terms,
. covenants, or conditions, it being agreed that the remedy at law for any breach of any such term,
covenant, or condition is not~:adequate. In the event any person shall institute any action or
0 proceeding against another person relating to the provisions of this Declaration, then and in such
o event the unsuccessful litigant in such action or proceeding shall reimburse the successful litigant
,_ therein for all reasonable costs and expenses incurred in connection with any such action or
proceeding and any appeals therefrom, including reasonable attorneys' fees and court costs, to
~ the extent permitted by the terms of any final order, decree, or judgment.
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r-.. 10. Limitations of Liability - Except as set forth in the preceding Section 8, Declarant
tv shall not be liable for damages or otherwise, to anyone arising out of any other action taken or
not taken by Declarant pursuant to the provisions of this Declaration.
WHEREFORE, this Declaration is executed and effective this 2"d day of September,
2009 at Schertz, Texas.
DECLARANT•
414 Partnership, Ltd.
By: 414 Enterprises, L.L.C.
Its General Partner
By:
Dennis W. Stahl, President
STATE OF TEXAS §
COUNTY OF BEXAR §
This instrument was acknowledged before me on the 2"d day of September 2009, by
Dennis W. Stahl, President of 414 Enterprises, L.L.C., a Texas limited liability company, which
is the General Partner 414 Partnership, Ltd., a Texas limited partnership, known to me to be the
person whose name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes therein expressed, in the capacity therein stated, and as the
act and deed of : artnership, Ltd.
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Declaration of Restrictive Covenants.doc
Declaration of Restrictive Covenants
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Notary Public, State of exas
Yp12789 p6Q891
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CONSENTED TO AND AGREED N
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City of Schertz
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Don E. Taylor, i er --
STATE OF TEXAS §
COUNTY OF GUADALUPE §
This instrument was acknowledged before me on the 2"d day of September 2009, by
Don E. Taylor, City Manager of the City of Schertz, known to me to be the person whose name
is subscribed to the foregoing instrument and acknowledged to me that he executed the same for
the purposes therein expressed, in the capacity therein stated, and as the act and deed of the City
of Schertz.
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~ SARAH E GONL4LF3
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"~" State of Texas
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Notary Public, State of Texas
,~/~~ ~ After recording, return to:
C..~',,..1' P2ti'erte Gerhart
Fulbright & Jaworski L.L.P.
300 Convent Street, Suite 2200
San Antonio, TX 78205-3792
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TERESA KIEL
COUtiTY CLERK GUt,DAlU?E COUNTY
BY~~
Declazation of Rutriaive CovenarfLS.doc
Declaration of Restrictive Covenants 6
FILED FQR RECORD
STATE OF7EXAS
COUNTY OF GUADALUPE
t certify this instrument was F!!ED off the
Gate and et the time stamped lherrfon and
was duty recorded in ttq Ottidai Putflie
Records of Guadalupe Cour>h, Texas.
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Cwadatupe County Clerk
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Exhibit "A"
Drawing of Tract I
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This page has been added by the Guadalupe County Clerk's office to
comply with the statutory requirement that the clerk shaft stamp the
recording information at the foot of the fast page of the document.
This page becomes a part of the document identified by Document Number
~_ ~ ~j o~,_ affixed on the first page of this document.
FIi.ED FOtt RECORD
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STATE OF TEXAS
COUNTY OF GUADALUPE
t certify tt~is Instrument was FILED on the
data end ai the tin ~s~ nth p~ c ~d
was duty recorded
Records o1 Guedatupe cowdt-, ~ ~s.
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