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21-R-53 - Agreement with Developer of Homestead for Reimbursement costsRESOLUTION NO. 21 -R -53 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AN AGREEMENT WITH THE DEVELOPER OF THE HOMESTEAD SUBDIVISION PROJECT FOR THE REIMBURSMENT OF COSTS ASSOCIATED WITH EASEMENT ACQUISITION NECESSARY FOR PUBLIC IMPROVEMENTS. WHEREAS, there is a lack of sewer service to serve an area of northern Schertz near the intersection of IH -35 and Schwab road. WHEREAS, the sewer forcemain improvements offsite sewer improvements are needed to provide adequate sewer service to these areas and there is limited space to provide this public infrastructure. WHEREAS, the Developer of the Homestead Subdivision agrees to construct sewer infrastructure of which the capacity is more than is required by the Homestead property, WHEREAS, there is a benefit to oversizing sewer infrastructure to serve other properties, WHEREAS, the Developer of the Homestead Subdivision has acquired some of the easements necessary for construction of the sewer improvements, but has not been able acquire them all, and WHEREAS, the Developer of the Homestead Subdivision has requested the City assist in acquiring the remaining easements, WHEREAS, the City Council finds that it is in the best interest of the City to enter into the Agreement with Developer for acquisition of the easement necessary for the construction of Public Improvement in order to provide the infrastructure to serve other properties outside the boundary of the proposed Homestead Subdivision plat. 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 the agreement with Developer for easement acquisition associate with construction of Public Improvement with ILF N -T Owner, LP for infrastructure that will serve properties outside of the Homestead Subdivision and to defer construction of public improvements, generally in the form attached, subject to changes approved by the City Manager and City Attorney. 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resolutions or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein.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 28th day of September 2021. ATTEST: 'Lill WY Secretary, Brenda Dennis CITY OF SCHERTZ, TEXAS - Z44 Ma i al i utierrez -2- 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. WASTEWATER EASEMENT AGREEMENT THE STATE OF TEXAS § COUNTY OF COMAL § GRANT OF EASEMENT: NOLLEY CARIBBEAN PROPERTIES, L.L.C., a Wyoming limited liability company, with offices located at 300 Arcadia Court Pittsburgh, PA 15237 ( "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 shown on the sketch in Exhibit "A" and more particularly described on Exhibit "B ", 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 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 sanitary sewer 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. 3. Purpose and Scope of Easement. The Easement shall be used solely for one sanitary sewer pipeline, with the pipe measuring no more than 12 inches in diameter, and related necessary appurtenant facilities to the sanitary sewer pipeline, such pipeline to be buried to a minimum depth of 4 feet from the top of the pipeline to the surface of the ground, including placement, construction, installation, replacement, repair, maintenance, relocation, removal, and operation of one 12 inch sanitary sewer pipeline and related necessary appurtenant facilities, to the sanitary sewer pipeline. Above - ground appurtenances are limited to air release valves for the sanitary sewer pipeline. The Easement shall also be used for the purpose of providing access for the operation, repair, maintenance, and replacement of the sanitary sewer pipeline and related necessary appurtenant facilities. After construction of the sanitary sewer pipeline, Holder shall grade the surface of the ground within the Easement Property and restore it to the condition in which it existed before construction of the sanitary sewer pipeline and related necessary appurtenances, and if Holder replaces, repairs, maintains, relocates, or removes the sanitary sewer pipeline and /or related necessary appurtenances, Holder shall restore Grantee's Property to the condition in which it existed before such replacement, repair, maintenance, relocation, or removal. Holder shall have no right to fence or enclose the Easement Property. The Easement is granted subject to other existing easements of record at the time of this grant. 4. Term. 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 under the following conditions: such use by Grantor and Grantor's heirs, successors, and assigns does not interfere with the use of the Easement Property by Holder for the Easement Purpose; and Grantor may not construct any building, vertical structure or obstruction on the Easement Property, but Grantor may construct streets, driveways, drive aisles and parking facilities, together with the necessary paving, on the Easement Property. Grantor retains 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 not permitted herein, which approval shall not be unreasonably withheld. 6. Temporary Construction Easement. Holder has the right (the "Temporary Construction Easement") to use the surface of the 10 -foot wide area adjacent to the Easement Property ( "Temporary Construction Area "), to assist in the initial installation of the sanitary sewer pipeline, which Temporary Construction Easement shall expire on the 180'' day after construction begins on the sanitary sewer pipeline on the property. Holder shall promptly restore the area of the Temporary Construction Area to its previous physical condition if changed by use of the rights granted by this Temporary Construction 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 sanitary sewer pipeline and related necessary appurtenant facilities will be at the sole expense of Holder. Holder has the right to eliminate any encroachments installed on the Easement Property in violation of the terms set forth in this instrument, but Holder agrees that Grantor shall have the right to construct streets, driveways and drive aisles, and parking facilities, together with the necessary parking, on the Easement Property. Holder has the right to construct, install, maintain, replace, and remove the sanitary sewer pipeline and related necessary appurtenant facilities under or across any portion of the Easement Property. Above - ground appurtenances are limited to air release valves for the sanitary sewer pipeline. All matters concerning the sanitary sewer pipeline and related necessary appurtenant 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 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 within the Easement Property 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, with 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. 13. 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 Warranty. 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 day of .2020. GRANTOR: NOLLEY CARIBBEAN PROPERTIES, L.L.C., a Wyoming limited liability company By: Name: Title: THE STATE OF § COUNTY OF § This instrument was acknowledged before me on , 2020, by , as of NOLLEY CARIBBEAN PROPERTIES, L.L.C., a Wyoming limited liability company, on behalf of said company. Notary Public Signature (seal) GR ANTRF - AGREED AND ACCEPTED: CITY OF SCHERTZ, TEXAS, a Texas home -rule municipality M. ATTEST: Brenda Dennis, City Secretary THE STATE OF TEXAS COUNTY OF GUADALUPE This instrument was acknowledged before me on home -rule municipality, on behalf of said municipality. (seal) , 2020, by of the City of Schertz, Texas, a Texas Notary Public Signature Consent. Joinder and Subordination bN Lender The undersigned, as of PATE —CHEN INVESTMENTS, L.L.C., hereby joins in the execution of this Agreement to evidence its consent and agreement to the terms and provisions hereof, and to confirm and agree that any and all liens held by the undersigned, whether by Deed of Trust, reservation in a deed, constitutional, contractual or otherwise, are subject and subordinate to the terms and provisions of this wastewater easement, as the same may be amended or modified from time -to -time. Without limiting the preceding general statement, it is agreed that the following liens are hereby subordinated to the terms of this Wastewater Easement Agreement: Deed of Trust to secure a Note: Grantor: Nolley Caribbean Properties, L.L. C., Trustee: Diego A. Lopez, Beneficiary: Pate -Chen Investments L.L. C., Dated: June 13, 2017, Recorded: June 15, 2017, in County Clerk's File No. 201706029110, of the Official Public records of Comal County, Texas. PATE —CHEN INVESTMENTS, L.L.C. Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the by as INVESTMENTS, L.L.C., on behalf of said company. day of , 2020, , of PATE —CHEN Notary Public, State of Texas My Commission Expires: , 20 EXHIBIT "A" SKETCH OF EASEMENT PROPERTY EXHIBIT "A" scale: 1' = 200' THIS EXHIBIT WAS CREATED WITHOUT BENEFIT OF A TITLE COMMITMENT AND MAY NOT SHOW ALL EASEMENTS OR A OTHER MATTERS MODIO THE PROPERTY AND MAY NOT MEET CORAL COUNTY SUBDIVISION REQUIREMENTS NOTE: BEARINGS SHOWN HEREON ARE BASED ON NAD 113 IC.TI�I ) 0N STATE E. PLANE COOROMATES, SOUTH CENTRAL 1E7fAS 2 LEGEND" FOC T6pNT OF C01Rk7R182FNT POD PDBtr OF BF181H160 \�N � c \N�1? .4 /�L \ • / / VARMBLE WUM MAY Ew (0.013 ACRE) o� /� /t (� \� 1 C3 ' // \v�O� �J PATE CHEN INVESTMENTS, LLC opY ` RESIDUE OF / / rr 10' TEMPORARY maLtcwn�T EASEMF /- �Gyy 'O tP %•Y (h o/ 80.47 AC (TRACT 1) EXISTING 16' DOC# 201106022679 SAN_ SWR. ESMT (5/128 -129) RNBLE WIf711I vmw ma / t (0.517 ACRE) EXISTING EFFLUENT ` PIPE/POND ESMT (264/514) \� IXISTING 18' SOUR. ESWT T�(s /120 -tz9) LINE TABLE LINE TABLE LINEN Dl1agCIlON I.EAaTN Leff/ DIRECTION Two VAMAIRE WIDTH UTtl.RY EASEMEM'S \ BEING A 0.013 OF AN ACRE (55D SQUARE FEET) AND A EXISTING Tao• 0.517 OF AN ACRE (22,518 SQUARE FEET) PARCEL OF DRAINAGE ESMT LAND OUT OF THE RAFAEL GARZA SURVEY NO. 96, LENSTH Lt S63'E ME I ZLW Lit StO'2nM 88021' 12 014.1946`1IV B.7W Lit FQ3'N4a'VIT 3WW L3 SWIS IM 19180' L13 N109!'66'E 21142C L4 NI6'44.14W 27.M L14 N2Y8R40'E 41.W L5 N5r2312E 20.80 L15 NSIT226E MW LB 83, 072 *W 286.TV L18 N11g0O2E 6636' V 820'D766•W 1BO3r LIT N16R1YTE 110.81• U 811"a64TW 64.88' 811113P8W 89AW LIB N29a49TE 164.03 W Lt8 N6B 28@E 18623 L10 838'86'40W 47A1' L20 1HI98Q96E 2821' Two VAMAIRE WIDTH UTtl.RY EASEMEM'S \ BEING A 0.013 OF AN ACRE (55D SQUARE FEET) AND A EXISTING Tao• 0.517 OF AN ACRE (22,518 SQUARE FEET) PARCEL OF DRAINAGE ESMT LAND OUT OF THE RAFAEL GARZA SURVEY NO. 96, (5/126 -129) NO. 175, BEING \ OABSTRACT OF THE 80 7 OFRTHER UT OF LAND \ (TRACT 1) CONVEYED TO PATE CHEN INVESTMENTS, LLC BY \ DEED RECORDED IN DOCUMENT NO. 201108022679, OF \ OFFICIAL PUBLIC RECORDS, COMAL COUNTY, TEXAS. 94� af� LEGAL DESCRIPTIONS PREPARED TO ACCOMPANY THIS DRAWINI, 'w, +1801 . �.r✓.,!{� t� DAVID A LAMENTS REOI9IERED PROFESSIONAL LAND SURVEYOR iY� STE_ _ 460i TEXAS RB06TRATION 016. 6URV0Y NOT 1M3 LIN= ONNNAL 1111011401011E 61 W RED INK .LOB / 6067 -02-P7 - DATE: =117 INTERSTATE HIGHWAY 35 COMAL COUNTY, TEXAS R A60+ TO I AUM. N101E - m21 «: -aooe 1011 .. CDUIR IlH T,Mq TUf1E �. E',NGMEERING i Ru ^^�^+�+� 1TMS 70,10 CIYB, EnvinmmeOtel ena BIRVWO ift M - - ( WNT. �- '•+�'� *r6r'4^° 6AY - c"'v- '601 20' UTILITY EASEMENT SH12T: EXHIBIT "B" LEGAL DESCRIPTION OF EASEMENT PROPERTY River City Engineering 1011 W. County Line Road ' NEW BRAUNFELS, TX. 78130 PHONE (830) 625-0337 FAX (830) 625 -0858 dlamberts@rcehLcom Firm Regishation 410193949 VARIABLE WIDTH UTILITY EASEMENT EXHIBIT "B" Being a 0.517 of an acre (22,518 square feet) parcel of land out of the Rafael Garza Survey No. 98, Abstract No. 175, Comal County, Texas, further being out of the residue of that certain called 80.47 sere parcel (Tract 1) conveyed to Pate Chen Investments, LLC by deed recorded in Document No. 201106022679 of the Official Public Records of Comal County, Texas; Said 0.517 of art acre parcel being more particularly described by metes and bounds as follows with all bearings called for herein based on the Texas Coordinate System as established from the North American Datum of 1983 (CORS96) for the South Central Zone: COM11ENCING at a V. inch rebar set (capped "RPLS 490T') on the southeasterly right - of -way line of Interstate Highway 35 for the most northerly corner of said residue of said 80.47 acre parcel, same being the most westerly corner of that certain called 0.0480 of an acre parcel conveyed to Lennar Corporation (U.S. Home Corporation) by deed recorded in Volume 535, Page 16 of said Official Public Records; THENCE departing said right -of -way line and with the common line of said residue of said 80.47 acre parcel with said 0.0480 of an acre parcel; South 83 deg 58' 35" East, a distance of 26.81 feet to a point on the southeasterly line of an existing 16' wide sanitary sewer easement recorded in Volume 531, Page 835 of said Official Public Records; THENCE with the southeasterly line of said 16' sanitary sewer easement, South 59 deg 23' 02" West, a distance of 678.98 feet to a point for a the northeasterly comer and POINT OF 13EGNN NG of this parcel; THENCE into said residue of said 80.47 acre parcel, South 37 deg 07' 21" West, a distance of 235.70 feet to a point for angle; THENCE South 20 deg 07' S6" West, a distance of 160.61 feet to a point for angle; THENCE South 11 deg 08' 02" West, a distance of 54.06 feet to a point for angle; THENCE South 11 deg 02' 25" West; a distance of 66.49 feet to a point for angle; THENCE South 33 deg 36' 48" West, a distance of 47.41 feet to a point for angle; Page 1 of 2 EXHIBIT `B" VARIABLE WIDTH UTILITY EASEMENT (cons) THENCE South 10 deg 26' 59" West, a distance of 350.01 feet to a point on the common line of said residue of said 80.47 acre parcel with that certain called 3.4096 acre parcel conveyed to Guadalupe- Blanco River Authority by deed recorded in Volume 259, Page 126 of the Deed Records of Comal County, Texas for the southeasterly corner of this parcel; THENCE with said common line, North 23 deg 39' 40" East, a distance of 35.66 feet to a point for the southwesterly comer of this parcel; THENCE crossing said residue of said 80.47 acre parcel, North 10 deg 26' 59" East, a distance of 324.58 feet to a point for angle; THENCE North 33 deg 36' 48" East, a distance of 47.52 feet to a point for angle; THENCE North 11 deg 02' 25" East, a distance of 62.52 feet to a point for angle; THENCE North 11 deg 08' 02" East, a distance of 55.65 feet to a point for angle; THENCE North 13 deg 21' 17" East, a distance of 118.81 feet to a point for angle; THENCE North 25 deg 54' 37" East, a distance of 164.83 feet to a point on the southeasterly line of the aforementioned 16' sanitary sewer easement for the northwesterly corner of this parcel; THENCE with said southeasterly line of said easement, North 59 deg 23' 02" East, a distance of 13639 feet to the POINT OF BEGINNING and containing 0.517 of an acre (22,518 square feet) of land. Q�L� "I C)+-6G-fl David A. Lamberts R.P.L,S. No. 4907 J.O. No. 6097- 02 -P7B (Drawing prepared to accompany this description) Pep 2 of 2 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. WASTEWATER EASEMENT AGREEMENT THE STATE OF TEXAS COUNTY OF COMAL GRANT OF EASEMENT: NOLLEY CARIBBEAN PROPERTIES, L.L.C., a Wyoming limited liability company, with offices located at 300 Arcadia Court Pittsburgh, PA 15237 ( "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 shown on the sketch in Exhibit "A" and more particularly described on Exhibit "B ", 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: 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 sanitary sewer 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. 3. Purpose and Scope of Easement. The Easement shall be used solely for one sanitary sewer pipeline, with the pipe measuring no more than 12 inches in diameter, and related necessary appurtenant facilities to the sanitary sewer pipeline, such pipeline to be buried to a minimum depth of 4 feet from the top of the pipeline to the surface of the ground, including placement, construction, installation, replacement, repair, maintenance, relocation, removal, and operation of one 12 inch sanitary sewer pipeline and related necessary appurtenant facilities, to the sanitary sewer pipeline. Above - ground appurtenances are limited to air release valves for the sanitary sewer pipeline. The Easement shall also be used for the purpose of providing access for the operation, repair, maintenance, and replacement of the sanitary sewer pipeline and related necessary appurtenant facilities. After construction of the sanitary sewer pipeline, Holder shall grade the surface of the ground within the Easement Property and restore it to the condition in which it existed before construction of the sanitary sewer pipeline and related necessary appurtenances, and if Holder replaces, repairs, maintains, relocates, or removes the sanitary sewer pipeline and/or related necessary appurtenances, Holder shall restore Grantee's Property to the condition in which it existed before such replacement, repair, maintenance, relocation, or removal. Holder shall have no right to fence or enclose the Easement Property. The Easement is granted subject to other existing easements of record at the time of this grant. 4. Term. 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 under the following conditions: such use by Grantor and Grantor's heirs, successors, and assigns does not interfere with the use of the Easement Property by Holder for the Easement Purpose;' and Grantor may not construct any building, vertical structure or obstruction on the Easement Property, but Grantor may construct streets, driveways, drive aisles and parking facilities, together with the necessary paving, on the Easement Property. Grantor retains 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 not permitted herein, which approval shall not be unreasonably withheld. 6. Temporary Construction Easement. Holder has the right (the "Temporary Construction Easement ") to use the surface of the 10 -foot wide area adjacent to the Easement Property ( "Temporary Construction Area "), to assist in the initial installation of the sanitary sewer pipeline, which Temporary Construction Easement shall expire on the 180t' day after construction begins on the sanitary sewer pipeline on the property. Holder shall promptly restore the area of the Temporary Construction Area to its previous physical condition if changed by use of the rights granted by this Temporary Construction 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 sanitary sewer pipeline and related necessary appurtenant facilities will be at the sole expense of Holder. Holder has the right to eliminate any encroachments installed on the Easement Property in violation of the terms set forth in this instrument, but Holder agrees that Grantor shall have the right to construct streets, driveways and drive aisles, and parking facilities, together with the necessary parking, on the Easement Property. Holder has the right to construct, install, maintain, replace, and remove the sanitary sewer pipeline and related necessary appurtenant facilities under or across any portion of the Easement Property. Above -ground appurtenances are limited to air release valves for the sanitary sewer pipeline. All matters concerning the sanitary sewer pipeline and related necessary appurtenant 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 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 within the Easement Property 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, with 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. 13. 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 Warranty. 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 day of .2020. GRANTOR: NOLLEY CARIBBEAN PROPERTIES, L.L.C., a Wyoming limited liability company By: Name: Title: THE STATE OF § COUNTY OF § This instrument was acknowledged before me on , 2020, by as of NOLLEY CARIBBEAN PROPERTIES, L.L.C., a Wyoming limited liability company, on behalf of said company. Notary Public Signature (seal) GRANTER: AGREED AND ACCEPTED: CITY OF SCHERTZ, TEXAS, a Texas home -rule municipality ATTEST: Brenda Dennis, City Secretary THE STATE OF TEXAS § COUNTY OF GUADALUPE § This instrument was acknowledged before me on , 2020, by of the City of Schertz, Texas, a Texas home -rule municipality, on behalf of said municipality. Notary Public Signature (seal) Consent. Joinder and Subordination bN' Lender The undersigned, _ as of PATE -CHEN INVESTMENTS, L.L.C., hereby joins in the execution of this Agreement to evidence its consent and agreement to the terms and provisions hereof, and to confirm and agree that any and all liens held by the undersigned, whether by Deed of Trust, reservation in a deed, constitutional, contractual or otherwise, are subject and subordinate to the terms and provisions of this wastewater easement, as the same may be amended or modified from time -to -time. Without limiting the preceding general statement, it is agreed that the following liens are hereby subordinated to the terms of this Wastewater Easement Agreement: Deed of Trust to secure a Note: Grantor: Nolley Caribbean Properties, L.L.C., Trustee: Diego A. Lopez, Beneficiary: Pate -Chen Investments L.L.C., Dated: June 13, 2017, Recorded: June 15, 2017, in County Clerk's File No. 201706029110, of the Official Public records of Comal County, Texas. PATE -CHEN INVESTMENTS, L.L.C., Mot Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of by , as INVESTMENTS, L.L.C., on behalf of said company. 2020, of PATE -CHEN Notary Public, State of Texas My Commission Expires: , 20 EXHIBIT "A" SKETCH OF EASEMENT PROPERTY EXHIBIT °AM THIS EXHIBIT WAS CREATED WITHOUT BENEFIT OF A TITLE COMMITMENT AND MAY NOT SHOW ALL EASEMENTS OR OTHER NATTERS AFFE06NG THE PROPERTY AND MAY NOT MEET COMAL COUNTY SUBDIVISION REOUIREMENIS NOTE: BEARINGS SHOWN HEREON ARE BASED ON HAD 83 =N1 STATE PLANE COORDINATES, SOUTH CENTRAL Z. LEGEND- POD POINT OF COMMENCEMENT POD POINT OF B£DR1NN0 C3 FOWiD TImOI 1101eDmIf --�— 8ET 1/7' RE91R (GAFF® 71P13 4@D%7 Scale: i' = 200' L2 1 GO�PAp p �e EN pp6591 �p�1Q ,,g� ��r UTILITY ESIIR \ 6p6 S \p�5 G �yQy • /mil (0.013 ACRE) 43 pOpC+ "e,9�G 1pr°pp9 �p� pCt\t \p� � O�S PATE CHERE INVESTMENTS. OF � EXISTING 16' SAN. SWR. ESMT (5/128 -129) DAVID A IAMIMATS REQUITT ED PROFEM61ML LAND SURYEIOR P 49M TONS REMBIRATTON NO. 6DNIT13lw6 N " 01110ML JOB I @M--02 -" DATE: 121N7 RIVER CITYD , ADI„N. TERM 76 - 7 F,,NG4INEERING loll � ,a XR :D. m GV6, EOVDOIQIM16@�DI1d 12L- lBD = 1 - -T"A" 11 80.47 Al., (TRACT 1) DOC# 201106022679 UNETABLE mm I EXISTING EFFLUENT PIPE/POND 4 ESMT (264/514) L8E@ DIRECTION O' TEMPORARY EXISTING 16' \ SAN. SWR. ESMT CONSTRUCTIO (5/128 -129) EASEM / — = _ -� 982'BB7SE 1� L11 810`27W1V 0 L2 SWIB46'W EXISTING 1 DRNNAGE MT L12 (5/128 -129) 38.87 L6 SW IV46W 16.60 DAVID A IAMIMATS REQUITT ED PROFEM61ML LAND SURYEIOR P 49M TONS REMBIRATTON NO. 6DNIT13lw6 N " 01110ML JOB I @M--02 -" DATE: 121N7 RIVER CITYD , ADI„N. TERM 76 - 7 F,,NG4INEERING loll � ,a XR :D. m GV6, EOVDOIQIM16@�DI1d 12L- lBD = 1 - -T"A" 11 80.47 Al., (TRACT 1) DOC# 201106022679 UNETABLE LINE TABLE L8E@ DIRECTION LENIM U E@ DICTION LL94QTN L7 982'BB7SE um L11 810`27W1V 760.01' L2 SWIB46'W @.17 L12 N231374PW 38.87 L6 SW IV46W 16.60 L13 N10'2666'E 32440' 14 N76'44'141N 21.78' L14 N677746E 47.6? L5 NW2vam 26r1R I LIS N111'0226E 62.62' 13 67E'07'2vw 286.76' LM Ntt'08b2'E 661@ L7 820VTSM 180:61' L77 N/T21Y71 116x1' Le 811EFIRM 54A7 L76 N26'6477'E 10437 L2 611'Q44VW O&W L1@ N67R6@'E 18877 L10 663*3F4FW 47A1' L70 .686'88981 26.01' TWO VARIABLE WIDTH UTILITY EASEMENTS BEING A 0.013 OF AN ACRE (550 SQUARE FEET) AND A 0.517 OF AN ACRE (22,518 SQUARE FEET) PARCEL OF LAND OUT OF THE RAFAEL GARZA SURVEY NO. 98, ABSTRACT NO. 175, COMAL COUNTY, TEXAS, FURTHER BEING OUT OF THE RESIDUE OF THE 80.47 ACRES OF LAND (TRACT 1) CONVEYED TO PATE CHEN INVESTMENTS, LLC BY DEED RECORDED IN DOCUMENT NO. 201106022679, OFFICIAL PUBLIC RECORDS, COMAL COUNTY, TEXAS. LEGAL DESCRIPTIONS PREPARED TO ACCOMPANY THIS DRAWIN 4 INTERSTATE HIGHWAY 35 COMAL COUNTY, TEXAS 20' UTILITY EASEMENT SHEET: 1 OF 1 EXHIBIT "B" LEGAL DESCRIPTION OF EASEMENT PROPERTY River City Engineering 1011 W. County Line Road * NEW BRAUNFEL% TX. 78130 PHONE (830) 625.0337 FAX (830) 6254M dlamberhorcetLcom Firm Registration #10I93949 VARIABLE WIDTH UTILITY EASEMENT EXHIBIT "B" Being a 0.013 of an acre (550 square feet) parcel of land out of the Rafael Garza Survey No. 98, Abstract No. 175, Comal County, Texas, further being out of the residue of that certain called 80.47 acre parcel (Tract 1) conveyed to Pate Chen Investments, LLC by deed recorded in Document No. 201106022679 of the Official Public Records of Comal County, Texas; Said 0.013 of an acre parcel being more particularly described by metes and bounds as follows with all bearings called for herein based on the Texas Coordinate System as established from the North American Datum of 1983 (CORS96) for the South Central Zone: COMMENCING at a'h inch rebar set (capped "RPLS 4907) on the southeasterly right - of-way line of Interstate Highway 35 for the most northerly corner of said residue of said 80.47 acre parcel, same being the most westerly corner of that certain called 0.0480 of an acre parcel conveyed to Lennar Corporation (U.S. Home Corporation) by deed recorded in Volume 535, Page 16 of said Official Public Records; THENCE departing said right -of - -way line and with the common line of said residue of said 80.47 acre parcel with said 0.0480 of an acre parcel, South 83 deg 58' 35" East, a distance of 26.81 feet to a point on the southeasterly line of an existing 16' wide sanitary sewer easement recorded in Volume 531, Page 835 of said Official Public Records for the most northerly comer and POINT OF BEGINNING of this parcel; THENCE continuing with said common line, South 83 deg 58' 35" East, a distance of 22.99 feet to a point for a comer of this parcel; THENCE into said residue of said 80.47 acre parcel, South 14 deg 15' 46" West, a distance of 8.19 fleet to a point for angle; THENCE South 59 deg 15' 46" West, a distance of 19.88 feet to a point for the most southerly comer of this parcel; THENCE North 75 deg 44' 14" West, a distance of 27.73 feet to a point on the southeasterly line of the aforementioned 16' sanitary sewer easement for the most westerly corner of this parcel; Page 1 of 2 EJH[B1T "B" VARIABLE WIDTH UTIIdTY EASEMENT (cont.) THENCE with said southeasterly line of said easement, North 59 deg 23' 02" East, a distance of 26.86 feet to the POINT OF BEGINNING and containing 0.013 of an acre (550 square feet) of land. Cps V4,— 0 +-j 6 -11 David A. Lamberts RP.L.._ . No. 4907 J.O. No. 6097- 02 -P7A (Drawing prepared to accompany this description) Page 2 of 2 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. WASTEWATER EASEMENT AGREEMENT THE STATE OF TEXAS § COUNTY OF COMAL § GRANT OF EASEMENT: NOLLEY CARIBBEAN PROPERTIES, L.L.C., a Wyoming limited liability company, with offices located at 300 Arcadia Court Pittsburgh, PA 15237 ( "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 shown on the sketch in Exhibit "A" and more particularly described on Exhibit "B ", 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: 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 sanitary sewer 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. 3. Purpose and Scope of Easement. The Easement shall be used solely for one sanitary sewer pipeline, with the pipe measuring no more than 12 inches in diameter, and related necessary appurtenant facilities to the sanitary sewer pipeline, such pipeline to be buried to a minimum depth of 4 feet from the top of the pipeline to the surface of the ground, including placement, construction, installation, replacement, repair, maintenance, relocation, removal, and operation of one 12 inch sanitary sewer pipeline and related necessary appurtenant facilities, to the sanitary sewer pipeline. Above - ground appurtenances are limited to air release valves for the sanitary sewer pipeline. The Easement shall also be used for the purpose of providing access for the operation, repair, maintenance, and replacement of the sanitary sewer pipeline and related necessary appurtenant facilities. After construction of the sanitary sewer pipeline, Holder shall grade the surface of the ground within the Easement Property and restore it to the condition in which it existed before construction of the sanitary sewer pipeline and related necessary appurtenances, and if Holder replaces, repairs, maintains, relocates, or removes the sanitary sewer pipeline and /or related necessary appurtenances, Holder shall restore Grantee's Property to the condition in which it existed before such replacement, repair, maintenance, relocation, or removal. Holder shall have no right to fence or enclose the Easement Property. The Easement is granted subject to other existing easements of record at the time of this grant. 4. Term. 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 under the following conditions: such use by Grantor and Grantor's heirs, successors, and assigns does not interfere with the use of the Easement Property by Holder for the Easement Purpose; and Grantor may not construct any building, vertical structure or obstruction on the Easement Property, but Grantor may construct 'streets, driveways, drive aisles and parking facilities, together with the necessary paving, on the Easement Property. Grantor retains 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 not permitted herein, which approval shall not be unreasonably withheld. 6. Temporary Construction, Easement. Holder has the right (the "Temporary Construction Easement ") to use the surface of the 10 -foot wide area adjacent to the Easement Property ( "Temporary Construction Area "), to assist in the initial installation of the sanitary sewer pipeline, which Temporary Construction Easement shall expire on the 180' day after construction begins on the sanitary sewer pipeline on the property. Holder shall promptly restore the area of the Temporary Construction Area to its previous physical condition if changed by use of the rights granted by this Temporary Construction 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 sanitary sewer pipeline and related necessary appurtenant facilities will be at the sole expense of Holder. Holder has the right to eliminate any encroachments installed on the Easement Property in violation of the terms set forth in this instrument, but Holder agrees that Grantor shall have the right to construct streets, driveways and drive aisles, and parking facilities, together with the necessary parking, on the Easement Property. Holder has the right to construct, install, maintain, replace, and remove the sanitary sewer pipeline and related necessary appurtenant facilities under or across any portion of the Easement Property. Above - ground appurtenances are limited to air release valves for the sanitary sewer pipeline. All matters concerning the sanitary sewer pipeline and related necessary appurtenant 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 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 within the Easement Property 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, with 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. 13. 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 Warranty. 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 parry to be charged. IN WITNESS WHEREOF, this instrument is executed this day of 52020. GRANTOR: NOLLEY CARIBBEAN PROPERTIES, L.L.C., a Wyoming limited liability company By: Name: Title: THE STATE OF § COUNTY OF § This instrument was acknowledged before me on , 2020, by , as of NOLLEY CARIBBEAN PROPERTIES, L.L.C., a Wyoming limited liability company, on behalf of said company. Notary Public Signature (seal) ref"I ON I Dix AGREED AND ACCEPTED: CITY OF SCHERTZ, TEXAS, a Texas home -rule municipality LE ATTEST: Brenda Dennis, City Secretary THE STATE OF TEXAS § COUNTY OF GUADALUPE § This instrument was acknowledged before me on 2020, by of the City of Schertz, Texas, a Texas home -rule municipality, on behalf of said municipality. Notary Public Signature (seal) The undersigned, Consent, Joinder and Subordination bv Lender as of PATE -CHEN INVESTMENTS, L.L.C., hereby joins in the execution of this Agreement to evidence its consent and agreement to the terms and provisions hereof, and to confirm and agree that any and all liens held by the undersigned, whether by Deed of Trust, reservation in a deed, constitutional, contractual or otherwise, are subject and subordinate to the terms and provisions of this wastewater easement, as the same may be amended or modified from time -to -time. Without limiting the preceding general statement, it is agreed that the following liens are hereby subordinated to the terms of this Wastewater Easement Agreement: Deed of Trust to secure a Note: Grantor: Nolley Caribbean Properties, L.L.C., Trustee: Diego A. Lopez, Beneficiary: Pate -Chen Investments L.L.C., Dated: June 13, 2017, Recorded: June 15, 2017, in County Clerk's File No. 201706029110, of the Official Public records of Comal County, Texas. PATE -CHEN INVESTMENTS, L.L.C., By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of by , as INVESTMENTS, L.L.C., on behalf of said company, , 2020, of PATE -CHEN Notary Public, State of Texas My Commission Expires: , 20 EXHIBIT "A" SKETCH OF EASEMENT PROPERTY THIS EXHIBIT WAS CRE43M WINMNR BENEFIT OF A TIT E COMMENT AND MAY NOT SHOW ALT. EASEMENTS OR OTHER MATTERS AFFECBNG THE PROPERTY AND MY NOT MEET CO" COUNTY SUBDIVISION REOIBREMENTS NOTE: BEARINGS SHOWN HEREON ARE BASED ON NO 83 (COMB) STATE PLANE COORDINATES, SOUTH CENTRAL TDUG ZONE O POW Oi/ 2B�EO� �— FOUNID 1iDDr MONIMENT VGO 'J4 �Q REO131ENa1 PROFIS8roM4i LAND SURVEYOR 94997 TEXAS RBGIBIWOgN NO, ANM rR INNT " OMIIIIINIAL JOB ! am-02- *2 DATE:8IMAT P� to , �a `, 106 EXHIBIT "A" �21y. Scale: 1" = 100' �•' F � Iw3 G� a 2�9p6G � A5 LINE j 5 G�� FG Xyl Lt NNIT4'12E 10' TEMPORARY L2 CONSTRUCTION EASEMENT ry01 L2 8B2'04'13W LINS TAME LINE oR6C ION LIENO7H Lt NNIT4'12E 27M L2 SR'21'49E 2219 L2 8B2'04'13W 21LIC L4 SM"4WW 28.09 Ls N21'29198 28.23 NERD .`@TTY ���7�1 \Fi� G 20' UTILITY EASEMENT GYN, EnvbonlnaMelBIW Survay7np T..,rpKAr�sWw t.rw"r��rs� BEING A 0.111 OF AN ACRE (4,814 SQUARE FEET) PARCEL OF LAND OUT OF THE RAFAEL GARZA SURVEY NO. 98, ABSTRACT NO. 175, COMAL COUNTY, TEXAS, FURTHER BEING OUT OF THAT CERTAIN 27.84 ACRES OF LAND (TRACT 2) CONVEYED TO PATE CHEN INVESTMENTS, LLC BY DEED RECORDED IN DOCUMENT NO. 201106022579, OFFICIAL PUBLIC RECORDS, COMAL 2 �1 W— COUNTY, TEXAS, 7S LEGAL DESCRIPTION PREPARED TO ACCOMPANY THIS DRAWING DAVID A. LAM2TEF M _ - rA-r ws , V NERD .`@TTY ���7�1 \Fi� G T'D .13m NM GYN, EnvbonlnaMelBIW Survay7np T..,rpKAr�sWw t.rw"r��rs� 9RWN� f1Eli� fE�W4 AHONE - tmal u9-mee FAY - PW- 9ZE -.+9oT INTERSTATE HIGHWAY 35 COMAL COUNTY, TEXAS 20' UTILITY EASEMENT SHEET: 1 OF 1 EXHIBIT `B" LEGAL DESCRIPTION OF EASEMENT PROPERTY River City Engineering 1011 W. County Line Road * NEW BRAUNFEL % TX. 78130 PHONE (830) 625 -0337 FAX (830) 625-0868 diamberb@rcetx.com Firm Registration #10193949 20' UTILITY EASEMENT EXHIBIT `B" Being a 0.111 of an acre (4,814 square feet) parcel of land out of the Rafael Garza Survey No. 98, Abstract No. 175, Comal County, Texas, further being out of the residue of that certain called 27.84 acre parcel (Tract 2) conveyed to Pate Chen Investments, LLC by deed recorded in Document No. 201106022679 of the Official Public Records of Comal County, Texas; Said 0.111 of an acre parcel being more particularly described by metes and bounds as follows with all bearings called for herein based an the Texas Coordinate System as established from the North American Datum of 1983 (CORS96) for the South Central Zone: BEGINNING at a TXDOT monument found on the southeasterly right -of -way line of Interstate Highway 35 for the most westerly comer and POINT OF BEGINNING of this parcel, same being the most westerly comer of said residue of said 27.84 acre parcel and the most northerly comer of the residue of that certain called 8.258 acre parcel conveyed to Schertz Commercial Park, L.P. by deed recorded in Document No. 200706031428 of said Official Public Records; THENCE with said right -of -way line, the following two (2) courses: 1). North 66 deg 04' 13" East, a distance of 27.64 feet to a TXDOT monument found for angle; 2). North 59 deg 49' 23" East, a distance of 185.99 feet to a %: inch rebar found for the most northerly comer of this parcel, same being the most northerly comer of said residue of said 27.84 acre parcel and the most westerly comer of that certain called 4.53 acre parcel conveyed to the City of Schertz by deed recorded in Document No. 200906043951 of said Official Public Records; THENCE departing said right -of -way line and with the common line of said residue of said 27.84 acre parcel with said 4.53 acre parcel, South 82 deg 21' 45" East, a distance of 32.18 feet to a point for the most easterly comer of this parcel; THENCE with a line 20.00 feet from and parallel to said right -of -way line of Interstate Highway 35, the following three (3) courses: 1). South 59 deg 45' 00" West, a distance of 212.50 feet to a point for angle; 2). South 66 deg 04' 13" West, a distance of 28.76 feet to a point for angle; 3) South 66 deg 14' 23" West, a distance of 29.04 feet to a point on the common line of said residue of said 27.84 acre parcel with the residue of said 8.258 acre parcel for the most southerly corner of this parcel; Page 1 of 2 EIEO[BPf "B" 20' UTILITY EASEMENT (COAL) THENCE with said common line, North 31 deg 39' 18" East, a distance of 35.23 feet to the POINT OF BEGINNING and containing 0.111 of an acre (4,814 square feet) of land. David A. Lamberts R.P.L.S. No. 4907 J.O. No. 6097-02 -P2 (Drawing prepared to accompany this description) Page 2 of 2