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2011-R-31 - Utility Easement Agreement with Aurora Jean Seda PacheoRESOLUTION NO. 11 -R -31 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A UTILITY EASEMENT AGREEMENT WITH AURORA JEAN SADA PACHECO, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the City enter into a Utility Easement Agreement with Aurora Jean Sada Pacheco relating to a water and sewer utility easement; and WHEREAS, the City Council has determined that it. is in the best interest of the City to contract with Aurora Jean Sada Pacheco pursuant to the Utility Easement Agreement attached hereto as Exhibit A (the "Agreement "). 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 execute and deliver the Agreement with Aurora Jean Sada Pacheco 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resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein.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 5. 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. 50428336.1 PASSED AND ADOPTED, this 21st day of June, 2011. CITY OF SC RTZ, TEXAS Mayor ATTEST: City Secretary (CITY SEAL) 50428336.1 EXHIBIT A UTILITY EASEMENT AGREEMENT 50428336.1 A -1 UTILITY EASEMENT AGREEMENT Effective Date: June 1, 2011 Grantor: Aurora Jean Sada Pacheco 1643 E. Pyron San Antonio, Bexar County, Texas 78214 Grantee: City of Schertz (the "City ") 1400 Schertz Parkway Schertz, Guadalupe County, Texas 78154 Easement Pro pert : That certain 16 foot wide, 0.531 acre tract described on Exhibit "A" and depicted on Exhibit "B" attached hereto, located in the City of Schertz, Comal County, Texas. Easement Purpose. The purpose of the Easement is for erecting, constructing, installing, replacing, repairing, operating, using, inspecting, reconstructing, modifying, removing and maintaining a sewer force main (the "Force Main ") and a water main (the "Water Main "), together with all lines, pipes, conduits and other equipment, improvements and appurtenances used in the supply and provision of such utilities (the "Facilities "). Construction Easement: The Construction Easement herein granted shall be located across a twenty foot (20') strip of land adjacent and parallel to the Easement Property The Construction Easement is granted for the purpose of facilitating the construction of the Facilities. The Construction Easement shall terminate upon the earlier to occur of (i) completion of Force Main and Water Main construction, or (ii) six (6) months after commencement of construction, which is hereby defined to mean the commencement of excavation work upon the Easement Property Grantee shall promptly repair and restore the Premises following any such construction work. Consideration. Ten Dollars ($10.00) and other good and valuable consideration and the agreements set out herein. Grant. Grantor, for the Consideration and subject in the Reservations From Conveyance and the Exceptions to Conveyance and Warranty grants, sells and conveys to Grantee and easement over, upon and across the Easement Property for the Easement Purpose and for the benefit of Grantee; to have and hold it to Grantee, subject to the terms hereof. Grantor binds Grantor and Grantor's successors and assigns to warrant and defend all and singular the easements, rights and property interests herein conveyed to Grantee against every person whomsoever lawfully claiming or to claim the same or any part thereof, except as to the Reservations From Conveyance and the Exceptions to Conveyance and Warranty, by, through, or under Grantor, but not otherwise. Reservations from Conveyance: Grantor reserves the right to continue to use and enjoy the surface of the Easement Property for all purposes that do not interfere with or interrupt the use or enjoyment of the easement by Grantee for the Easement Purpose, including the right to place surfacing materials over and across the Easement Property and to use the same for parking and/or driveways or walkways; provided, however, no buildings, structures of any kind, ponds, drainage facilities or other improvements may be placed on the Easement Property which will obstruct the Easement or interfere with the Facilities or the exercise of the City's rights. Grantor may raise, but not lower the level of the surface of the Easement Property, provided that any such change in the level of the surface of the Easement Property may not unreasonably interfere with or prevent the use of the Easement Property for the Easement Purpose. Grantor or its successors or assigns must observe and exercise all notification laws as per the Underground Facility Damage Prevention and Safety Act, also known as "ONE CALL" & "CALL BEFORE YOU DIG ", when working in or near the Easement Property. To the extent that such laws and codes apply, Grantor or its successors or assigns must observe all safety codes and laws which apply to working along, within and or near the Easement Property and Facilities, including O.S.H.A., the Texas Health and Safety Code, the National Electric Code, and the National Electrical Safety Code. Exceptions to Conveyance and Warranty: This conveyance is made by Grantor and accepted by Grantee subject to any and all existing easements, covenants, rights -of -way, conditions, restrictions, outstanding mineral interests and royalty interests, if any, relating to the Easement Property, to the extent, and only to the extent, that the same may still be in force and effect, and either shown of record in the office of the County Clerk of the County in which any part of the Property is located, or that may be apparent on the Property. Terms: The following terms apply to this easement: 1. Character of Easement. The easement is exclusive to the city for water and sewer utilities; otherwise, it is non - exclusive provided that the City or Grantor may allow utilization: of the easement for utility purposes and that (i) easements conveyed to other utility providers involving the Easement Property will be subordinate to the City's easement, and (ii) any other utility provider must cooperate with the City when locating its Facilities within the Easement Property to assure that none of the City Facilities are damaged or functionally impaired. Grantee will also have reasonable rights of ingress and egress to and from said Easement Property, together with reasonable working space, for the purposes of erecting, installing, operating, maintaining, replacing, inspecting and removing the Facilities, together with the additional right to remove from the Easement Property and land immediately adjoining thereto, all bushes, trees and parts thereof, any vegetation or other structures or improvements with are within, protrude, bisect, encroach or overhang into the Easement Property and which, in the sole opinion of Grantee, endanger or may interfere with the efficient, safe and proper operation and maintenance of the Facilities. 2. Duration. The duration of the easement is perpetual and irrevocable. 3. Easement Improvements. All matters concerning the design, construction, installation, maintenance, replacement and removal of the Facilities are at the sole discretion of the City and/or it's assigns, subject to performance of it's obligations under this agreement. All Facilities or other improvements constructed within, on or under the Easement Property will be and remain the property of the City or its assigns. To the extent allowed by the Constitution and the laws of the State of Texas, the City and/or its assigns assumes the entire responsibility for the construction and maintenance of their respective Facilities, and nothing contained herein will ever be construed to place upon Grantor any manner of liability for injury to or death of persons or for damage to or loss of property arising from or in any manner connected with the acts, conduct or negligence of the City and/or its assigns in the construction and maintenance of the Facilities. In the event Grantor places surfacing materials, landscaping or other permitted improvements over and across the Easement Property or portions thereof (the Grantor Improvements), the City and/or its assigns will use ordinary care to minimize damage to Grantor Improvements in the event repair, replacement or maintenance of the Facilities is required. Should it become necessary at any time subsequent to completion of the Force Main and Water Main for Grantee to enter the Premises for the purpose of maintaining, repairing, operating or altering the Force Main and Water Main in any way, Grantee shall, after each entry upon the Premises, leave the Premises substantially at the same level and condition that it was in prior to such entry to the full extent reasonably practicable. 4. Enforcement. If there is any breach or threatened breach of this easement by any party or their successors or assigns, and the default or threat continues after the claiming party gives the defaulting party notice of the claim of default and a reasonable opportunity to cure the default (if the default is capable of being cured), then the claiming party may enforce the terms of this easement by restraining order and by temporary and permanent injection, prohibiting such breach and commanding the offending party to comply with all the terms of this easement. Restraining orders and injunctions will be obtainable upon proof of existence of any breach or threatened breach, and without the necessity of proof of inadequacy of legal remedies or irreparable harm, and will obtainable only by the parties hereto or those benefited hereby; 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 right or remedies available at law or in equity. 5. Attorneys' Fees. Any party who is the prevailing party in any legal proceeding against any other party brought under or in connection with this agreement or the subject matter hereof, is additionally entitled to recover reasonable attorneys' fee, expert fees, and all other litigation expenses. 6. Effect of Waiver or Consent. No waiver or consent, express or implied, by any party to this easement of any breach by any party in the performance by such party of its obligations hereunder will be deemed or construed to be a consent to or a waiver of any other breach and the performance by such party of the same or any other obligations of such party hereunder. Failure on the part of a party to complain of any act of any party or to declare any party in default, regardless of how long such failure continues, will not constitute a waiver by such party of its rights hereunder until the applicable statute of limitations period has run. 7. General Provisions. (a) This agreement bind and inures to the benefit of the parties hereto and their respective successors and assigns. (b) This agreement contains the complete agreement of the parties and cannot be varied except by written agreement. The parties agree that there are no oral agreements, representations or warranties that are not expressly set forth in this agreement. (e) Each 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. (d) This agreement will be construed under the laws of the State of Texas without regard to choice of law rules of any jurisdiction. Venue will lie in the courts of Comal County, Texas. (e) If any provision in this agreement is for any reason unenforceable, to the extent the unenforceability does not destroy the basis of the bargain between 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 the contact requires, the singular will include the plural and neuter includes 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. (f) 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 the 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. (g) This agreement may be amended, modified or terminated, in whole or in part, only by the written agreement of the parties hereto. (h) In the event of a deficiency in title or actions taken by others which results in the relocation of Grantee's Facilities, the Grantor herein, its successors and assigns, will be responsible for all costs associated with the relocation and/or removal of Grantee's Facilities. EXECUTED as of the dates in the acknowledgments below, to be effective, however, as of the 1st day of June, 2011. GRANTOR: Aurora Je ada Pac eco, an individual GRANTEE: City Manager, City of Schertz STATE OF TEXAS COUNTY OF BEXAR This instrument was acknowledged before me on the ! /�day of 2011, by Aurora Jean Sada Pacheco, an individual. Er� pE8FA D. JONES Notary Public stale of Texas My commission Expires Notary Public in an for the State of Texas July 7, 2013 STATE OF TEXAS COUNTY OF GUADALUPE Thi ' st ent was acknowledged before me on the C %day of , 2011, by r,s City Manager of the City of Schertz, Texas, a body corporate and politic and a political subdivision of the State of Texas. .uu,rru a „rr,.r, trot rrrin,runrr,rrfirI r,r,rrrud,.r►,. t r :RENDA LOUISE DENNI NOTARY PUBLIC STATE OF TWS t :unn,►,ru►rr, rnrunn,,qurrrur ► rrrurrrur„ +nu ► r►rurrn Notary Public in and for the S ate of Texas FORD Date; July 22, 2010 Project No: 2305.00 EXHIBIT A VA E INC. FIELD NOTES DESCRIPTION UTILITY EASEMENT Page I of 2 Field notes describing 0.531 acres (23,115.57 Sq. Ft.) of land, situated in the C.M. Gahagan Jr. Survey No. 258, Abstract No. 182, Abstract No. 182, Comal County, Texas, being a portion of the remainder of a 64.5 acre tract of land conveyed to Aurora Jean Sada Pacheco recorded in Document No. 9806002004 of the Official Public Records of Comal County, Texas and contained within the hereon described easement is a 10 foot waterline easement conveyed to Solms Water Supply Corporation =Now owned by New Braunfels Utilities recorded in Volume 136 Page 445 of the Deed Records of Comal County, Texas, being more particularly described as follows; BEGINNING: at a'' /z inch iron rod found on the Southeastern Right of Way line of Interstate Highway 35 for the Northeastern comer of the remainder of the said 64.5 acre tract, the same being the Northwestern corner of a remainder of a 18.0 acre tract referred to as Tract 2 conveyed to Barbara A. Wright in Document No. 200906025647 of the Official Public Records of Comal County, Texas, for the Northeastern corner of this easement; THENCE: S 13 058'42" E —17.22 feet along the Pastern line of the remainder of the said 64.5 acre tract,'the Western line. of the remainder of the said 18.0 acre tract to a point for the Southeastern corner of this easement; THENCE: S 54 018'47" W — 806.46 feet across the remainder of the said 64.5 acre tract to a point for a corner of this easement; THENCE: S 54°25'47" W — 195.58 feet continuing across the remainder of the said 64.5 acre tract to a point for a comer of this easement; THENCE: S 59°22'42" W — 249.04 feet continuing across the remainder of the said 64.5 acre tract to a point for a comer of this casement; THENCE: S 33048'16" W -- 195.66 feet continuing across the remainder of the said 64.5 acre tract to a point on the Eastern right of way line of Schwab Road, the Western line of the remainder of the said 64.5 acre tract, for a comer of this easement; THENCE: Along the Eastern line of said Schwab Road, the Western line of the remainder of the said 64.5 acre tract, a curve to the left having a Delta angle of 01 043'06 ", a Radius of 756.80 feet, an Are length of 22.70 feet and a Chord bearing of N 11001'13" W — 22.70 feet to a broken Texas Department of Transportation right of way monument found for a corner of the remainder of the said 64.5 acre tract, a comer of Interstate Highway 35, for a corner of this easement; THENCE; N 33 °48'16" E- 183.20 feet along the cutback line of Interstate Highway 35 and Schwab Road, a line of the remainder of the said 64.5 acre tract to a point for a comer of that certain 0.129 acre Texas Department of Transportation Controlled Access Tract recorded in 10927 WYE DRIVE, SUITE 104, SAN ANTONIO, TEXAS 78717 (210) 590 -4777 FAX: 590 -4940 1- 800.332 -3109 Web Site; www.fordengineering.com TBPE No. F -1162 EXHIBIT FORD a A RING, Z-F INC. Z- Page 2 of 2 Document No. 9806019606 of the Official Public Records of Comal County, Texas, for a corner of this easement; THENCE. N 59 022'42" E along the Southeastern line of the said 0.129 acre controlled access deed, a line of remainder of the said 64.5 acre tract, at 33.00 feet pass a Texas Department of Transportation right of way monument found, a distance in all of 251.98 feet to a Texas Department of Transportation right of way monument found for a corner of the said 0.129 acre controlled access tract, a corner of the remainder of the said 64.5 acre tract, for a comer of this easement; THENCE. N 54 025'47" E — 194.87 feet continuing along the Southeastern line of the said 0.129 acre controlled access tract, a line of the remainder of the said 64.5 acre tract to a Texas Department of Transportation right of way monument found for a comer of the said 0.129 acre tract, a corner of the remainder of the said 64.5 acre tract, for a corner of this easement; THENCE: N 5498'47" E- 812.82 feet along the Southeastern line of said interstate Highway 35, the Northwestern line of the remainder of the said 64.5 acre tract to the POINT OF BEGINNING and containing 0.531 acres (23,115.57 Sq. Ft.) of land, according to a survey made on the ground under my supervision; Reference Bearing is NAD 83 Texas State Plane Coordinate System, Texas South Central Zone. Corresponding plat prepared. Project No: 2305.00 U.E. Rex L. Hackett Registered Professional Land Surveyor License Number 5573 10927 WYE DRIVE, SUITE 104, SAN ANTONIO, TEXA5 78217 (210) 590 -4777 FAX: 590 -4940 1- 800 - 332 -3109 Web Site: www.fordengineering.com TBPE No. F -1162 w m 4i Q rte°' DOG E 0 n ri M1 �° W \\ 76 Ida r Y fA 5 a L 2� 0 = o gna �w 13! iE 0� igo r w c� �h s em Rai w Z x,z � o w z Qt z wtw, C.; LJ� 3 ?GIs 0 h.ti �ia rtOrt� � e V LL z C m R I s r h� °n W U O fj LL G �i •R �, EgMT $ W S 47 \ \� \\ \ \\ jiMA rT P Z t0 !V a too � �s O �3�C W I Z Z N a �8 F �m Ulm : . co r Y fA 5 a L 2� 0 = o gna �w 13! iE 0� igo r w c� �h s em Rai w Z x,z � o w z Qt z wtw, C.; LJ� 3 ?GIs 0 h.ti �ia rtOrt� � e V LL z C m R I s r h� °n W U O fj LL G �i •R �, EgMT $ W S 47 \ \� \\ \ \\ jiMA rT P \\ �f �A QOCD �cr =p0 zz � QUQ UN� 4 a S a a a Ad k a � R � O ti 4D SS 7� ,y i ra ,.9 w i �o z O �� � Pm, IL C W' W a 'rte ¢O� 9 k Fil INS S � 19 ,gym Is � g Z� W a w OW z� z Wy a O� z� LL i fn r M O H w a e W �U ICI EXHIBIT LS 2• g a w w 3 C h 4 m `s N eq a3 9 a R el W , W 7k. 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