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19-R-51 Water and waste water line easement agreementsRESOLUTION NO. 19 -R -51 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS APPROVING AND AUTHORIZING WATER AND WASTE WATER LINE EASEMENT AGREEMENTS ACROSS PRIVATE PROPERTY FROM ERH -NNN -3 LLC, A DELAWARE LIMITED LIABILITY COMPANY AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the City enter into agreement for Water and Waste Waterline Easement Agreement with ERH- NNN-3 LLC, a Delaware limited liability company ( the "Grantors "), in the form attached hereto as Exhibit A (the "Agreements "); and WHEREAS, the City needs the Water and Waste Waterline Easement in connection with the construction, operation, and maintenance of water mains to be relocated within the easement in the vicinity of the intersection of FM 1103 with IH 35; and WHEREAS, the Water and Waste Waterline Easement is necessary to relocated city owned utilities ensure access for the maintenance of water and waste water mains in the future; and WHEREAS, the City Council has determined that it is in the best interest of the City to accept the Water and Waste Waterline Easements in accordance with the terms of the Agreements. 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 and Waste Waterline Easements in accordance with the terms of the Agreements. 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resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein.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 23rd day of April, 2019. CITY OFRTZ, TEXAS R. Carpenter, Mayor ATTEST: en a Dennis, City Secretary 1*14111H0W:1 EASEMENT AGREEMENTS NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE 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 AND WASTEWATER EASEMENT AGREEMENT THE STATE OF TEXAS § COUNTY OF COMAL § GRANT OF EASEMENT: ERR -NNN -3 LLC, a Delaware limited liability company located at 15 West South Temple, Suite 900, Salt Lake City, Salt Lake County, Utah, 84101 ( "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 Property "), 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 by, through or under Grantor, but not otherwise 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 tenns 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 potable water, wastewater, and reclaimed wastewater facilities. 2. Character ofEasenwnt. 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. Purpose of Easement. The Easement shall be used for public water and wastewater 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. 4. Ter•nz. 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 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 to the extent such use or improvement interferes with Holder's use of the Easement Property for the Easement purpose. 6. Improvement and Maintenance of Easement Property. Subject to the provisions of Section 7., 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 such facilities. Holder will also replace, to their original condition, any sidewalk, landscaping, driveways or parking areas damaged in connection with the work. 7. Maintenance of Surface Easement Proper-ty/Perrnitted Inrprovenaents. 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. 8. 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. 9. 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. IQ. Binding Effect. This agreement binds and inures to the benefit of the parties and their respective heirs, successors, and permitted assigns. 11. Choice of Laiv. This agreement will be construed under the laws of the state of Texas, without regard to choose -of -law rules of any jurisdiction. Venue is in the county or counties in which the Easement Property is located. 12. 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. 13. 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. 14. 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. 15. 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. 16. Exceptions to PVarranty. This grant is subject to any and all encumbrances and easements of record, to the extent the same are valid and enforceable. 17. 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. 18. 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. 19. 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. 20. 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 2nd day of April, 2019. GRANTOR: ERH- -3 LLC, a Delaware limited liabilitv com an ame: ark T. Burton Title: President, CEO and Manager THE STATE OF UTAH § COUNTY OF SALT LAKE § This instrument was acknowledged before me on Apri 2019, by Mi ,(J�f 1 - BjAr'° an individual residing in G4 County, Utah. Public (seal) C4 qt r+ gt1 �x� €� � 3411 tt�ti2it asst asp GRANTEE: AGREED AND ACCEPTED: CITY OF SCHERTZ, TEXAS, a Texas home -rule municipality Mark Browne, City Manager THE STATE OF TEXAS § COUNTY OF GUADALUPE § This instrument was acknowledged before me on , 2019, by Mark Browne, City Manager of the City of Schertz, Texas, a Texas home -rule municipality, on behalf of said municipality. Notary Public Signature (seal) EXHIBIT "A" EASEMENT PROPERTY 147KE OF US PW8 0,033 ACKS C R <: G G 4l' E l7' ,,,.FND. 1/2' IRON ROD A. :r mss, ..'r .-%'`r x` •1 `tJ' `�C, iP �``�,s r RAFAEL G AR A ABSTIMI � 9 its c�6MLCOUNTY ABSTRACT 140,138 GUADALUPrz COUNTY v�oig A. �y CA' co CAI � •�,,.. �� o• 5O* tea, 4 BEARING ARE BASED ON TEXAS STATE PLANE COORDINATES, SOUTH CENTRAL ZONE NAO 83/93; 1" = 60' FND. 1/2" IRON ROD FND. 1/2" +; IRON ROD MKp. � 4020" e � THIS SURVEY WAS MADE ON THE GROUND, UNDER PLAT SHOWING OF MY SUPERVISION AND COMPLIES WITH THE CURRENT 0,147 ACRE 6411.2 Sq. Ft. �Q'••'�6T'•< TEXAS SOCIETY OF PROFESSIONAL SURVEYOR'S WATER / WASTEWATER ESMT. y'�i� RF''•. STANDARDS AND SPECIFICATIONS FOR A CATAGORY 2, CONDI ON 2. SITUATED IN THE RAFAEL GARZA SURVEY •'••'•••' • :•" NO. 88, A -175, COMAL CO, BEING A ......... REK L. HACi{ETT PORTION OF LOT 5, BLOCK 1 OF THE 8 HUBERTUS RETAIL SUBDIVISION AS SHOWN .............. 'FSS���¢~'r . ` ON A PLAT RECORDED IN DOCUMENT NO. �es �, REX L. HACKER 200808006485 OF THE MAP AND PLAT '. RFr.ISTFRF0 PROFESSIONAL LAND SURVEYOR RECORDS OF COMAL COUNTY, TEXAS G D L3 5 6T36:2()" 25.04 L4 N 59'53 4• E125.00' 1" = 60' FND. 1/2" IRON ROD FND. 1/2" +; IRON ROD MKp. � 4020" e � THIS SURVEY WAS MADE ON THE GROUND, UNDER PLAT SHOWING OF MY SUPERVISION AND COMPLIES WITH THE CURRENT 0,147 ACRE 6411.2 Sq. Ft. �Q'••'�6T'•< TEXAS SOCIETY OF PROFESSIONAL SURVEYOR'S WATER / WASTEWATER ESMT. y'�i� RF''•. STANDARDS AND SPECIFICATIONS FOR A CATAGORY 2, CONDI ON 2. SITUATED IN THE RAFAEL GARZA SURVEY •'••'•••' • :•" NO. 88, A -175, COMAL CO, BEING A ......... REK L. HACi{ETT PORTION OF LOT 5, BLOCK 1 OF THE 8 HUBERTUS RETAIL SUBDIVISION AS SHOWN .............. 'FSS���¢~'r . ` ON A PLAT RECORDED IN DOCUMENT NO. �es �, REX L. HACKER 200808006485 OF THE MAP AND PLAT '. RFr.ISTFRF0 PROFESSIONAL LAND SURVEYOR RECORDS OF COMAL COUNTY, TEXAS ORD IN11C ANGr, :1 Er, R, Date: March 28, 2018 Proj ect No:1124.9211 FIELD NOTES DESCRIPTION 0.147Aere (6411.2 Sq. Ft.) Water I Wastewater Easement 0.147 acre (6411.2 Sq. Ft.) easement, situated in the Rafael Garza Survey No. 98, Abstract No. 175, Comal County, Texas, being a portion of portion of Lot 5, Block I of the Hubertus Retail Subdivision as shown on a.plat recorded in Document No. 200806006465 of the Map and plat Records of Comal County, Texas, conveyed to ERN NNN 3 LLC in Document No. 201806001972 of the Official Records of Comal County, Texas; being more particularly described as follows: BEGINNING: at a point on the Northern line of said Lot 5, Block 1, the Southern line of H T S 2 Subdivision as shown on a plat recorded in Volume 8, Page 224 of the Map Records of Comal County, Texas, for the Northwestern corner of that certain 0.061 acre tract of land conveyed to the State of Texas in Document No. 201706053718 of the Official Records of Comal County, Texas, for the Northeastern corner of this easement, from which a'fz inch iron rod found for the Northeastern corner of said Lot comer of of the said State of Texas 0.06I H T S 2 Subdivision, the same being the Northeastern acre tract bears N 59 °53'41" E —10.37 feet; THENCE: S 30 °26'06" E -- 256.60 feet across said Lot 5, Block 1 and along the Southwestern line of the said State of Texas 0.061 acre tract to apoint on the Southem line of said Lot 5, Block I, the Northern line City of Sehertz in Document No. 2 00906013128 of the Officil Records of Comal County, Texas, for the Southwestern eof is easement, from which a Mag. Nail fund bears N 60°36'20 E e Southeastern ear7rer of thrs 9.08 feet; THENCE; S 60 °36'20" W -- 25.00 feet along the Southern line of said Lot 5, Block 1, the Northern line of the said City of Schertz 0.3689 acre tract to a point for the Southwestern corner of this easement; THENCE: N 30'26'06" W-256.29 feet across said Lot 5, Block 1 to a point on theNorthern line of said Lot 5, Block 1, the Southern line of said H T S 2 Subdivision, for the Northwestern corner of this easement, from which a Mag. Nail found for the Southwestern coiner of the said H T S 2 Subdivision bears S 59 15341" W- 175.09 feet; 1 1 10927 WyE DRIVF, SUITE 104 SATE! ANT01\110, T3X, 78217 P. (210) 590 -4777 TBPLS 210)1 OO1II400 1 -500- 332 -3109 www.fordengincering.com TBPE No. F -11 62 ffi- r F7,411 THENCE; N 59 °53'41" E — 25.00 feet along the Northern line of said Lot 5, Block 1, the Southern line of the said H T S 2 Subdivision to the POINT OF BEGINNING and containing 0.147 acres (6411.2 Sq. Ft.) of land. 1124,9211 Hubedus Retail Lot 5 Water/ Wastewater Esmt -docx REVISED 09-05-2018 BEARLIVGSARE:BA►SED ON THE STATE PLANE COORDINATE SYSTEM ESTABLISHED FOR THE TEXAS SOUTH CENTRAL. ZONE, 4204, NAD 83. Rex L. Hackett Registered Professional Land Surveyor License Number 5573 14927 WyE DR1 LIE SUITE 104 3Aid hN101410, TX 78217 1'. (2 10" 590 -4'797 F. (210) 590 -494{} 14-800-332-3109 vnywArdengineering.com - TBPE No. F -1162 TBPLS No. 10018400 EXCELREALTY HOLDINGS April 2, 2019 James A. Hooks, CFM Assistant Public Works Director City of Schertz 10 Commercial Place Bldg. #2 Schertz, Texas 78154 RE: FM 1103, New Braunfels, TX Water and Waste waterline Easement Agreement Dear Mr. Hooks, Per your request, enclosed is the Water and Wastewater - Easement Agreement which we've notarized and executed. You are hereby authorized to record the easement upon (i) the City's execution of the enclosed agreement with a fully executed version emailed to my attention at nx ; and (ii) our receipt of a the check in the amount of $91,359.60.00 payable to ERH -NNN -3 LLC. Please have the check sent by overnight mail to my attention at: Mark Burton, Excel Realty Holdings, LLC, 15 West South Temple, Salt Lake City, Utah 84101. We greatly appreciate your efforts and patience in working with us in completing this process. Sincerely, ark T. Bu�fir o" n President and CEO Enclosure Gateway Tower West 15 West South Temple, Suite 900 Salt Lake City, UT 84101 (801) 294 -2400