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19-R-14 Water & Easement Danville MiddleL. '` ' •t 1 • 1` 1 WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the City enter into an agreement for a Water Easement with Comal Independent School District (the "Grantor "), in the form attached hereto as Exhibit A (the "Agreement "); and WHEREAS, the City needs the Easement in connection with the operation, and maintenance of a potable water main extension parallel to FM 482, across a portion of Lot 1, Block 1, of the Comal ISD Middle School 6 Subdivision, beginning near the northeast intersection of Hubertus Road and FM 482; and running approximately 465 feet northeast. WHEREAS, the City Council has determined that it is in the best interest of the City to accept the Water Easement in accordance with the terms of 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 Agreements with the Grantor in substantially the form set forth on Exhibit A and to accept the Water Easement in accordance with the terms of the Agreement. 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resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein.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, this 5th day of February 2019. CITY OF SSA TZ, TEXAS R. Carpenter, Mayor ATTEST: s�' Brenda Dennis, City Secretary 1,10M, NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIDE ANY OR ALL OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER, WATER EASEMENT AGREEMENT THE STATE OF TEXAS COUNTY OF GoMA,(-- :._ Comal ISD, 1404 IH 35, New Braunfels, Texas 78132 ( "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 lawfully 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: 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) "Public Utility" shall mean water facilities. 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. Purpose of Easement. The Easement shalt be used for public utility purposes, including placement, construction, installation, replacement, repair, maintenance, relocation, removal, and operation of public utility facilities and related appurtenances, or making connections thereto. 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. Term. Easement shall be in perpetuity unless relinquished or abandoned by ordinance or resolution by Grantee. Reservation of Rights. Holder's right to use the Easement Property is nonexclusive, and Grantor and Grantor's heirs, successors, and assigns retain 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 does not (i) interfere with the use of the Easement Property by Holder for the Easement Purpose, nor (ii) may Grantor construct any building, structure or obstruction on the Easement Property. The right to convey to others the right to use all or part of the Easement Property in conjunction with Holder, as long as such further conveyance is subject to the terms of this agreement. Written approval of Holder must be obtained prior to any use or improvement of Easement Property. 6. Secondary Easement. Holder has the right (the "Secondary Easement ") to use the surface of the 20 -foot wide area adjacent to the Easement Property, 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 Property. 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 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 connection 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. Any permitted improvement made by Grantor must comply with applicable ordinances, development codes and engineering guidelines of the City of Schertz, and must not conflict with use of the easement for its intended purpose as described herein. 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 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. I3. Counterparts. 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. Waiver of Default. 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 R,`arranty. 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 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. 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. Notices. 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 purposes. 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 WITNESS WHEREOF, this instrument is executed this 30 day of Wo %fir— 52019. GRANTOR: Michael McCullar By. (Grantor's Signature) THE STATE OF TEXAS COUNTY OF § This instrument was acknowledged before me on I V6fM 6e r --310 , 20& by M (j/(4 Mr,&9. g&!f , an individual residing in �A4 County, Texas. SALLY McDONALD (Seal) ie NOTARY PUBLIC * * ID# 131576267 • 'P7 State of Texas Comm. Exp. 05-21-2022 Notary r CITY OF SCHER TZ, TEXAS, a Texas home -rule municipality I. THE STATE OF TEXAS COUNTY OF GUADALUPE Dr. Mark Browne, City Manager This instrument was acknowledged before me on , 2019, by Dr. Mark Browne, City Manager of the City of Schertz, Texas, a Texas home -rule municipality, on behalf of said municipality. Notary Public Signature (seal) I '' LEGAL DESCRIPTION 0.107 ACRES OF LAND 10 FEET WIDE WATER EASEMENT 0.107 acres of land located in the Raphael Garza Survey Number 98, Abstract Number 175, Coma County, Texas and being a portion of that certain 15.957 acres of land (save and except 1.337 acres) conveyed to the Board of Trustees of the Coma[ Independent School District, as described in Document Number 201206007815, Official Public Records of Comal County, Texas and further being a portion of Lot 1, Block 1, Comal ISD Middle School 6 subdivision, according to the map or plat thereof recorded in Document Number 201606041899, Official Public Records of Coma[ County, Texas; said 0.107 acres being more particularly described as follows: COMMENCING, at a found 1/2 inch iron rod located in the northeasterly right of way line of Hubertus Road and marking the southerly end of a curve at the intersection of the northeasterly right of way line Hubertus Road with the southeasterly right of way line of F.M. Highway 482; said rod further being located in the southwesterly line of said Lot 1, Block 1; THENCE, South 30deg 22'00" East, along the northeasterly line of said Hubertus Road, same being the southwesterly line of said Lot 1, Block 1, a distance of 19.45 feet, to a set 1/2 inch iron rod with "CUDE" cap, for the POINT OF BEGINNING of the said Water Easement; THENCE, into said Lot 1, Block 1, the following courses: North 29deg 01' 07" East, a distance of 461.88 feet, to a set 1h inch iron rod with "CUDE" cap; South 60deg 58'53" East, a distance of 10.00 feet, to a set 1/2 inch iron rod with "CUDE" cap; South 29deg 01' 07" West, a distance of 467.79 feet, to a set 1/2 inch iron rod with "CUDE" cap located in the northeasterly right of way line of said Hubertus Road, same being the southwesterly line of said Lot 1, Block; THENCE, North 30deg 22'00" West, along the northeasterly right of way line of Hubertus Road, same being the southwesterly line of said Lot 1, Block 1, a distance of 11.62 feet, to the POINT OF BEGINNING and containing 0.107 acres of land, more or less. Basis of bearings is the Texas State Plane Coordinate System, South Central Zone (4204), NAD 83 (93). James W. Russell Registered Professional Land Surveyor No. 4230 Of T� J Cude Engineers 4122 Pond Hill Road, Suite 101 ; , , San Antonio, Texas 78231 �1AIUIE, lr�l Rl)eSL�'( TBPLS Firm No, 10048500 4230 TBPE Firm No. 455 Job No. 02985.040 9�O,;FSS1Cf. c� SUR�,I r ! J.W.R. \� n,-...G "'"-" CUBE ENGINEERS 4122 POND HILL ROAD. STE 101 PHONE: (210)681 -2951 TBPE NO. 4S5 SAN ANTONIO I AUSTIN SAN ANTONIO. TEXAS 76231 CUDEENGINEERS.COM TBPLS NO. 10048500 D SO 1 nr-Arinu MAO 100' SCALE 1' =100' NOTES: 1. Basis of Bearings is the Texas State Plane Coordinate System, South Central Zone (4204), NAD 83(93). 2. A Metes and Bounds description accompanying this Exhibit plat of even date. 3. All corners shown hereon are 1/2" iron rods with plastic cap stamped "CUDE" set unless otherwise noted. 2D0' rye/ S60 058'53 "E o&P�� 10.00' /Cb / �ti, 10' WATE R EASEMENT ly 0"Y Q P.O.C. O Q• FOUND 1/2" IRON ROD S30'22'00 "E 19.45' sG 0— N30 °22'00 "W 11.62' 40'R.0.W. DEDICATION DOC# 201606041899 LEGEND O.P.R.C.C.T. D.P.R.C.C.T. = DEED AND PLAT RECORDS OF COMAL COUNTY TEXAS O.P.R.C.C.T. =OFFICIAL RECORDS OF COMAL COUNTY TEXAS P.O.B. = POINT OF BEGINNING P.O.C. = POINT OF COMMENCING 0 =SET IRON ROD WITH PLASTIC CAP STAMPLED "CUDE" ORAS NOTED 15.957ACRES BOARD OFTRUSTEESOF THE COMAL INDEPENDENT SCHOOL DISTRICT DOC #201206007815 O.P.R.CCT. COMAL ISD M/DDLESCHOOL 6 LOTI, BLOCKI DOC #201606041899 O.P.R.C.C.T. „!V „RUS�C,_ i EXHIBIT OF z 1888 CUDE ENGINEERS 0,107 ACRES OF LAND LOCATED IN THE RAPHAEL GARZA SURVEY NUMBER 98, ABSTRACT NUMBER 175, 0st' 4122 POND HILL RD. • SUITE 101 COMALCOUNTY, TEXALSAND BEINGAPDRTION OFTHATCERTAIN 15.957 ACRES OF LAND (SAVE AND CUDE TEL SAN ANTONIO, TEXAS 78231 210.681.2951• FAX 210.523.7112 EXCEPT 1.337 ACRES) CONVEYED TO THE BOARD OFTRUSTEES OFTHECOMAL INDEPENDENT SCHOOL c DISTRICT, AS DESCRIBED IN DOCUMENT NUMBER 201206007815, OFFICIAL PUBLICRECORDS OFCOMAL WWW.CUDEENGINEERS.COM COUNTY, TEXAS AND FURTHER BEING A PORTION OFLOT 1, BLOCK 1, COMAL ISO MIDDLE SCHOOL6 c F S �eINEE� TBPE FIRM #455 SUBDIVISION, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN DOCUMENT NUMBER TBPLS FIRM f#10048500 201606041899, OFFICIAL PUBLIC RECORDS OFCOMAL COUNTY, TM, E DATE NOVEMBER 28, 2018 JOB NO.: 02985.040 0