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14-R-18 - Town Creek-Joseph Hendrix Public Utility EasementRESOLUTION NO. 14 -R -18 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A PUBLIC UTILITY EASEMENT AGREEMENT WITH JOSEPH D. HENDRIX FOR THE USE, BENEFIT, AND CONTROL OF THE CITY OF SCHERTZ FOR THE TOWN CREEK SEWERLINE EXTENSION PHASE III PROJECT ON FM 482, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the City execute and deliver a Public Utility Easement Agreement with Joseph D. Hendrix for the use, benefit, and control of the City; and WHEREAS, the City is constructing a sewerline extension on FM 482 and the easements are necessary to complete the project; and WHEREAS, the City Council has determined that it is in the best interest of the City to execute and deliver to the Grantee the Public Utility Easement Agreement attached hereto as Exhibit A. 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 Public Utility Easement Agreement in substantially the form set forth on Exhibit A, with such minor modifications that may be authorized by the City Manager, in consultation with the City Attorney, provided that no such modifications shall be contrary to, or inconsistent with, the Public Utility Easement Agreement attached hereto. 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resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein.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. PASSED AND ADOPTED, thia% th day of February, 2014. ziiFn S MicfWcl R. Carpenter, Mayor ATTEST: i -Br$n Dennis, City Secretary (CITY SEAL) 50715776.2 EXHIBIT A PUBLIC UTILITY EASEMENT AGREEMENT 50715776.2 A -1 �j_ 201406008073 03/11/2014 03:46:06 PM 1/14 �/ NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING i INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD jt . IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR U DRIVER'S LICENSE NUMBER. PUBLIC UTILITY EASEMENT AGREEMENT THE STATE OF TEXAS § COUNTY OF COMAL § GRANT OF EASEMENT: JOSEPH D. HENDRIX, an individual whose address is 7031 F. M. 482, Schertz, Guadalupe County, Texas 78321, ( "Grantor "), for the sum of Ten and No /100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, does hereby grant, sell and convey unto THE CITY OF SCHERTZ, TEXAS, a Texas home -rule city, with offices located at 1400 Schertz Parkway, Schertz, Texas 78154 ( "Grantee "), an easement and right -of -way ( "Easement ") upon and across the property of Grantor which is more particularly described on Exhibit "A ", attached hereto and incorporated herein by reference ( "Easement Tract "), TO HAVE AND TO HOLD the same perpetually to Grantee and its successors and assigns, together with the rights, and privileges and on the terms and conditions set forth below; and Grantor, subject to the Exceptions, to Warranty, does hereby covenant and agree to WARRANT AND FOREVER DEFEND title to the Easement herein granted, unto Grantee, its successors and assigns, against every person whomsoever lawfiilly claiming or to claim the same or any part thereof. Terms and Conditions: The following terms and conditions apply to the Easement granted by this agreement: 1. Definitions. For the purposes of this grant of Easement certain terms shall have the meanings that follow: a) "Holder" shall mean Grantee and Grantee's heirs, successors and assigns who at any time own any interest in the conveyance is subject to the terms of this agreement. b) "Permitted Improvements" shall mean landscaping or planting of vegetation, driveways and sidewalks; but shall not mean parking facilities or other impervious cover, or the construction of a building or structure unless such installation or construction is approved in writing by the City Manager or the City Manager's designee. c) "Public Utility" shall mean water utility service. 2. Character of Easement. The Easement granted herein is "in gross," in that there is no "Benefitted Property." Nevertheless, the Easement rights herein granted shall pass to Grantee's successors and assigns, subject to all of the Terms hereof. The Easement rights of use granted herein are nonexclusive and irrevocable. The Easement is for the benefit of Holder. 3. Propose of easement. The Easement shall be used for public utility purposes, including placement, construction, installation, replacement, repair, maintenance, relocation, removal, expansion and operation of public utility facilities and related appurtenance, or making connections thereto, under, above or across the Easement Property. The Easement shall also be used for the purpose of providing access for the operation, repair, maintenance, replacement and expansion of the public utility facilities and related appurtenances. 4. Tern. Easement shall be in perpetuity unless relinquished or abandoned by ordinance or resolution by Grantee. 5. Reservation of Rights. Holder's right to use the Easement Property is nonexclusive, and Grantor and Grantor's heirs, successors, and assigns retain: a) Grantor's right to use: The right to use all or part of the Easement Property, in conjunction with Holder as long as such use by Grantor and Grantor's heirs, successors, and assigns use does not interfere with the use of the Easement Property by Holder for the Easement Purpose. Notwithstanding any contrary provision to this Agreement any improvement made by Grantor shall be limited to Permitted Improvements that must comply with applicable ordinances, development codes and engineering guidelines of the City of Schertz. b) Grantor's right to convey the right to arse: shall reserve the right to convey to others the right to use all or part of the Easement Property in conjunction with Holder, as long as: (i) such further conveyance is subject to the terms of this agreement; and (ii) Grantor obtains the written consent of the Holder (through Holder's City Manager) prior to any subsequent conveyance of the right to use the Easement Property. 6. Secondary Easement. Holder has the right (the "Secondary Easement ") to use the surface of the 25 foot wide area adjacent to the Easement Property, and is more fully described in Exhibit "B ", to assist in the initial installation and as may be reasonably necessary to maintain, repair and replace the Facilities within the Easement Property of the Facilities within the Easement Property. However, Holder must promptly restore the area of the Temporary Construction Easement to its previous physical condition if changed by use of the rights granted by this Secondary Easement. 7. Improvement and Maintenance of Easement Properlj. Subject to the provisions of Section 8., immediately below, 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. Holder has the right to construct, install, maintain, replace, and remove the Facilities under, above 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 or other encroachments within the Easement Property or along or near its boundary lines if reasonably necessary to construct, install, maintain, replace, or remove the Facilities. Holder will also replace to their original condition any landscaping, driveways or parking areas that were in existence prior to the granting of the Easement Property and are damaged in comiection with the work. 8. Maintenance of surface Easement Property /Permitted Improvements. Notwithstanding any contrary provision, Grantor shall retain the obligation to maintain the surface of the Easement Property, including the obligation to regularly mow or cut back vegetation and to keep the surface of the Easement Property free of litter, debris, or trash. 9. 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. 10. Attorney's Fees. If either 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. 11. Binding Effect. This agreement binds and inures to the benefit of the parties and their respective heirs, successors, and permitted assigns. 12. Choice of Lain. 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. 13. Counlei7)arls. This agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts will be construed together and will constitute one and the same instrument. 14. bVaiver of'Defotdt. It is not a waiver of or consent to default if the non - defaulting party fails to declare immediately default or delays in taking any action. Pursuit of any remedies set forth in this agreement does not preclude pursuit of other remedies in this agreement or provided by law. 15. 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. 16. Integration. This agreement contains the complete agreement of the parties and cannot be varied except by written agreement of the parties. The parties agree that there are no oral agreements, representations, or warranties that are not expressly set forth in this agreement. 17. Exceptions to Warranly. This grant is subject to any and all encumbrances and easements of record, to the extent the same are valid and enforceable. 18. Legal Construction. Any provision in this agreement is for any reason unenforceable, to the extent the unenfarceability 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. 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. 19. Nolices. 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 this 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. 20. Recitals/Exhibits. Any recitals in this agreement are represented by the parties to be accurate, and constitute a part of the substantive agreement. All exhibits referenced herein are attached hereto and incorporated by reference herein for all put-poses. 21. Entire Agreement. This instrument contains the entire agreement between the parties relating to the rights herein granted and the obligations herein assumed. Any oral representation or modification concerning this instrument shall be of no force and effect except for any subsequent modification in writing, signed by the party to be charged. In wit ess whereof, this instrument is executed this 1"CS day of�— ur iiV� ✓1 201. J\ GRANTOR: B: Joseph D. Hen ix AGREED AND ACCEPTED: CITY OF SCHERTZ, TEXAS, a Texas home -rule municipality By: John C. Kessel, City Manager ATTEST: Brenda Dennis, City Secretary THE STATE OF TEXAS § COUNTY O This instrument was acknowledged before me on f 201, by t[c1 r LIfL, an individual residing in County, Texas. aaaaaaTaaaa » »aaaaaaaaaaa2,aa CYNTHIA ANNE RALEIGH Notary PubKO * State of Texas �'e a Comm. Exp. 02 -11 -2016 y Cwwwwwwwwwwwwwwwwwwwwwwwwwv THE STATE OF TEXAS COUNTY OF GUADALUPE This instrument was acknowledged before me on wy(,h 201f by John C. Kessel, City Manager of the City of Schertz, Texas, a Texas home -rule municipalit on be i f ipality. ®gARAH of GPublic 1 f� , Notary Public *otarjyPubli State of Texas �,�°' My Comm. Exp,10.31 -2016 c Signahu'e (se ADDED TO EFFECT SCANNING PER COMAL COUNTY CLERK EXHIBIT "A" EASEMENT TRACT ADDED TO EFFECT SCANNING PER COMAL COUNTY CLERK ADDED TO EFFECT SCANNING PER COMAL COUNTY CLERK EXHIBIT "B" TEMPORARY EASEMENT TRACT ADDED TO EFFECT SCANNING PER COMAL COUNTY CLERK N rr E / E / J 1" = 100' R j/ / \ PAID. l 14'LR. i N OM6 80±2 w STATE OF TEXAS: COUNTY OF COMAL : I 1` \N 00N 'N 16' PERMANENT SEWER ESMT 0,174 Acres C 7566.5 Sq, Feel JD 5.P93 ANT DOC. NO. 200306074249 LINE BEARING DISTANCE L1 IS 03'46'39" E 7.07' 1-2 IS 31'42'38" E 9.67' 1-3 IN 59-42-57- E 16.00' RAFAEL GARZA SURVEY No. 98 A -175 I, REX L. HACKETT, DO HEREBY CERTIFY THAT THIS PLAT WAS PREPARED FROM AN ACTUAL SURVEY MADE ON T GROUND AND UNDER MY SUPERVISION. L. HACK6TT R.P.L.S. NO. 5579 DATE: 10- 10.2013 PROJECT NO.: 1124.2603 DRAWN BY: R.L.H. MD dyi«... .YE9l6lt MD. 1/4 I.R. / III/ �I 1 ON �� \ O . Joan Blanchard 65.449 ACRES VOL 573, P0. 626 T FORD ENGINEERING INC. ENGINEERING PLANNING - DEVELOPMENT 10927 WYE DRIVE, SUITE 104, SAN ANTONIO, TEXAS 76]17, (210(59047A TBPE NO, F TBPLS NO.1 _ PLAT SHOWING 0.174 AC. — 7,586.5 SQ. FT. 16 FOOT SANITARY SEWER ESMT. OF .. SITUATED IN THE RAFAEL GARZA . SURVEY NO. 98. ABSTRACT NO. 175, -- �j�P� \BTBj�, BEING A PORTION OF THAT CERTAIN *; F�.•.k 5.93 ACRE TRACT OF LAND CONVEYED ......................... TO JOSEPH HENDRIX RECORDED IN REXL.HACKETT DOCUMENT NO. 200306034249 " """""" " " "' ."' q 6573 OF THE OFFICIAL PUBLIC v RECORDS OF COMAL CO., TEXAS T FORD ENGINEERING INC. ENGINEERING PLANNING - DEVELOPMENT 10927 WYE DRIVE, SUITE 104, SAN ANTONIO, TEXAS 76]17, (210(59047A TBPE NO, F TBPLS NO.1 _ 10927 FORD ENGINEERING, INC. October 10, 2013 :t No: 1124.2603 16 foot Sanitary Sewer Easement Page 1 of 2 0.174 acre (7,586.5 sq. ft.) sanitary sewer easement situated in the Rafael Garza Survey D. 98, Abstract No. 175 and being a portion of that certain 5.93 acre tract of land nveyed to Joseph Hendrix and being recorded in Document No. 200306034249 of the fficial Public Records of Comal County, Texas and being more particularly described follows: BEGINNING: at a point on the Northwestern line of the said 5.93 acre tract, the Southeastern line of F.M. 482 for the Northeastern comer of this easement, from which a '/4 inch iron rod found for the Northeastern comer of the said 5.93 acre tract bears N 59 °42'57 "E - 202.11 feet; S 30011'46" E — 300.95 feet across the said 5.93 acre tract to a point for a of this easement; THENCE: N 59'48'14" E — 159.67 feet across the said 5.93 acre tract to a point on the Western line of an existing 15 foot sanitary sewer easement recorded in Volume 784, Pape 237 of the Official Public Records of Comal County, Texas; E: S 03 046'39" E — 7.07 feet along the Western line of the existing 15 foot sewer easement to a point for a comer of the said 15 foot sanitary sewer for a corner of this easement; 'NCE: S 31 °42'38" E — 9.67 feet continuing along the Western line of the said 15 sanitary sewer easement to a point for a comer of this easement; S 59048'14" W — 172.77 feet across the said 5.93 acre tract to a point for a of this easement; HENCE: N 30 011'46" W — 316.92 feet continuing across the said 5.93 acre tract to a Dint on the Northwestern line of the said 5.93 acre tract, the Southeastern line of said .M. 482, from which a '/4" iron rod found for the Northwestern comer of the said 5.93 -re tract bears S 59 °42'57" W — 337.82 feet; 'HENCE: N 59 °42'57" E — 16.00 feet along the Northwestem line of the said 5.93 acre act, the Southeastern line of said F.M. 482 to the POINT OF BEGINNING and ontaining 0.174 acre (7,586.5 sq. ft.) of land; according to a survey made under my upervision. DRIVE, SUITE 104, SAN ANTONIO, TEXAS 78217 (210) 590 -4777 FAX: 590 -4940 1 -800- 332 -3109 Web Site: www.fordengineering.com THE No. F -1162 FORD ENGINEERING, MC® Corresponding plat prepared. 1124.2603 Hendrix Perm Esmt. Page 2 of 2 Rex L. Hackett Registered Professional Land Surveyor License Number 5573 10927 WYE DRIVE, SUITE 104, SAN ANTONIO, TEXAS 78217 (210) 590 -4777 FAX: 590 -4940 1 -800- 332 -3109 Web Site: www.fordengineering.com THE No. F -1162 a � • E / 1" = 100' L5 ,F g4A1 / E(�60y1 Z / i o� N N� ii w� / R / O �• I . I J P.O.B. £ I I raw BLANCHARD N 65.449 ACRES VOL. 573, PO. 626 a\ I // �RWP1Ea 1� vG 3 �6N 25' TEMP CONST. ES T.. Q1 D,,p, 7 1*•1,R, 0.397 Acres 4'\ 17,297.3 Sq. Feet �\ \ \ /1g�� \ �( JOSS N HAAS X \ V , S4 'm`#�N�ey \ DOC. N0, 200306034249 \� 5 rj9 STATE OF TEXAS: COUNTY OF COMAL : LINE BEARING DISTANCE L1 N 31'42'38" W 6.34' L2 T03-46 39 W 68.07' L3 - 30'08'55" E 92.29' 5 T 59'49'56" W 88.73' L5 N 28'19'05" W 24.73' L6 N 59'42'57" E 112.92' RAFAELGARZA SURVEY No. 98 A -175 I, REX L. HACKETT, 00 HEREBY CERTIFY THAT THIS PLAT WAS PREPARED FROM AN ACTUAL SURVEY MADE ON THE GROUND AND UNDER MY SUPERVISION. RIM L $4CEBTP R.P.LS. NO. 6679 DATE: 10 -10 -2013 PROJECT NO.: 1124.260304 TEMP Y� x -9" a ...:................ REX L. HACKETT ..................... 6573 ... VA \.l Joan Blanchard 65,449 ACRES VOL. 57J, P6. 626 PLAT SHOWING 0.397 AC. — 17,297.3 SQ. FT. TEMPORARY CONST. ESMT. SITUATED IN THE RAFAEL GARZA SURVEY NO. 98, ABSTRACT NO. 175, BEING A PORTION OF THAT CERTAIN 5.93 ACRE TRACT OF LAND CONVEYED TO JOSEPH HENDRIX RECORDED IN DOCUMENT NO. 200306034249 OF THE OFFICIAL PUBLIC RECORDS OF COMAL CO., TEXAS FORD ENGINEERING INC. ENGINEERING PLANNING , DEVELOPMENT Aw8x 10927 NNE DRIVE, SUITE 104, SAN ANTONIO, TEXAS 78217, (210) 5904777 TOPE NO. F -1 TBPLS NO. 1 25 foot Temporary Construction Easement A 0.372 acre (16,184.8 sq. ft.) sanitary sewer easement situated in the Rafael Garza Survey No. 98, Abstract No. 175 and being a portion of that certain 5.93 acre tract of land conveyed to Joseph Hendrix and being recorded in Document No. 200306034249 of the Official Public Records of Comal County, Texas and being more particularly described as follows: BEGINNING: at a point on the Northwestern line of the said 5.93 acre tract, the Southeastern line of F.M. 482 for the Northeastern corner of this easement, from which a '/4 inch iron rod found for the Northeastern corner of the said 5.93 acre tract bears N 59 042'57" E — 218.11 feet; THENCE: S 30 011'46" E — 316.92 feet across the said 5.93 acre tract to a point for a corner of this easement; THENCE: N 59'48'14" E — 187.78 continuing across the said 5.93 acre tract to a point on the Eastern line of existing 15 foot sanitary sewer easement recorded in Volume 784, Page 237 of the Deed Records of Comal County, Texas, for a corner of this easement; THENCE: N 31 °42'38" W — 6.34 feet along the eastern line of the said existing 15 foot sanitary sewer easement to a point for a comer of the existing 15 foot sanitary sewer easement, for a comer of this easement; THENCE: N 03 046'39" W — 68.07 feet across the said 5.93 acre tract and along the Eastern line of the said existing 15 foot sanitary sewer easement to a point on the Eastern line of the said 5.93 acre tract, the Western line of that certain 65.449 acre tract of land conveyed to Joan Blanchard in Volume 573, Page 626 of the Deed Records of Comal County, Texas, from which a '/4 inch iron rod found for the Northeastern corner of the said 5.93 acre tract, the Northwestern corner of the said 65.449 acre tract bears N 30 008'55" W — 249.97 feet; THENCE: S 30 °08'55" E — 92.29 feet along the Eastern line of the said 5.93 acre tract, the Western line of the said 65.449 acre tract to a point for a corner of this easement; THENCE: S 59 °48' 14" W — 242.82 feet across the said 5.93 acre tract to a point for a comer of this easement; NCE: N 30 011'46" W — 316.99 feet continuing across the said 5.93 acre tract to a for a comer of this easement; 10927 WYE DRIVE, SUITE 104, SAN ANTONIO, TEXAS 78217 (210) 590 -4777 FAX: 590 -4940 1- 800. 332 -3109 Web Sire: www.fordengineering.com TBPE No. F -1162 FORD ENGINEERING, INC. Page 2 of 2 THENCE: S 59 °49'56" W — 88.73 feet continuing across the said 5.93 acre tract to a point for a corner of this easement; THENCE: N 28 119'05" W — 24.73 feet continuing across the said 5.93 acre tract to a point on the Northwestern line of the said 5.93 acre tract, the Southeastern line of said F.M. 482, from which a '/4 inch iron rod found for the Northwestern corner of the said 5.93 acre tract bears S 59 042'57" W — 224.90 feet; THENCE: N 59 °42'57" E — 112.92 feet along the Northwestern line of the said 5.93 acre tract, the Southeastern line of said F.M. 482 to the POINT OF BEGINNING and containing 0.397 acre (17,297.3 sq. ft.) of land; according to a survey made under my supervision. Corresponding plat prepared. 1124.260304 Hendrix Perm Esmt. Revised 02 -06 -2014 Rex L. Hackett Registered Professional Land Surveyor License Number 5573 Filed and Recorded Official Public Records Joy Slreater, County Clerk Coma' County, Texas 03/11/2014 03:46:06 P% LRURR 14 Pa9a(s) 201406000073 10927 WYE DRIVE, SUITE 104, SAN ANTONIO, TEXAS 78217 (210) 590 -4777 FAX: 590 -4940 1- 800 - 332 -3109 Web Site: www,fordengineering.com TBPE No. F M2