2011-R-31 - Utility Easement Agreement with Aurora Jean Seda PacheoRESOLUTION NO. 11 -R -31
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING A UTILITY EASEMENT
AGREEMENT WITH AURORA JEAN SADA PACHECO, AND OTHER
MATTERS IN CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the
City enter into a Utility Easement Agreement with Aurora Jean Sada Pacheco relating to a water
and sewer utility easement; and
WHEREAS, the City Council has determined that it. is in the best interest of the City to
contract with Aurora Jean Sada Pacheco pursuant to the Utility Easement Agreement attached
hereto as Exhibit A (the "Agreement ").
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes -the City Manager to execute and
deliver the Agreement with Aurora Jean Sada Pacheco in substantially the form set forth on
Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3, All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 5. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
50428336.1
PASSED AND ADOPTED, this 21st day of June, 2011.
CITY OF SC RTZ, TEXAS
Mayor
ATTEST:
City Secretary
(CITY SEAL)
50428336.1
EXHIBIT A
UTILITY EASEMENT AGREEMENT
50428336.1 A -1
UTILITY EASEMENT AGREEMENT
Effective Date: June 1, 2011
Grantor: Aurora Jean Sada Pacheco
1643 E. Pyron
San Antonio, Bexar County, Texas 78214
Grantee: City of Schertz (the "City ")
1400 Schertz Parkway
Schertz, Guadalupe County, Texas 78154
Easement Pro pert : That certain 16 foot wide, 0.531 acre tract described on Exhibit "A" and
depicted on Exhibit "B" attached hereto, located in the City of Schertz, Comal County, Texas.
Easement Purpose. The purpose of the Easement is for erecting, constructing, installing,
replacing, repairing, operating, using, inspecting, reconstructing, modifying, removing and
maintaining a sewer force main (the "Force Main ") and a water main (the "Water Main "),
together with all lines, pipes, conduits and other equipment, improvements and appurtenances
used in the supply and provision of such utilities (the "Facilities ").
Construction Easement: The Construction Easement herein granted shall be located across a
twenty foot (20') strip of land adjacent and parallel to the Easement Property The Construction
Easement is granted for the purpose of facilitating the construction of the Facilities. The
Construction Easement shall terminate upon the earlier to occur of (i) completion of Force Main
and Water Main construction, or (ii) six (6) months after commencement of construction, which
is hereby defined to mean the commencement of excavation work upon the Easement Property
Grantee shall promptly repair and restore the Premises following any such construction work.
Consideration. Ten Dollars ($10.00) and other good and valuable consideration and the
agreements set out herein.
Grant. Grantor, for the Consideration and subject in the Reservations From Conveyance and
the Exceptions to Conveyance and Warranty grants, sells and conveys to Grantee and easement
over, upon and across the Easement Property for the Easement Purpose and for the benefit of
Grantee; to have and hold it to Grantee, subject to the terms hereof. Grantor binds Grantor and
Grantor's successors and assigns to warrant and defend all and singular the easements, rights and
property interests herein conveyed to Grantee against every person whomsoever lawfully
claiming or to claim the same or any part thereof, except as to the Reservations From
Conveyance and the Exceptions to Conveyance and Warranty, by, through, or under Grantor, but
not otherwise.
Reservations from Conveyance: Grantor reserves the right to continue to use and enjoy the
surface of the Easement Property for all purposes that do not interfere with or interrupt the use or
enjoyment of the easement by Grantee for the Easement Purpose, including the right to place
surfacing materials over and across the Easement Property and to use the same for parking
and/or driveways or walkways; provided, however, no buildings, structures of any kind, ponds,
drainage facilities or other improvements may be placed on the Easement Property which will
obstruct the Easement or interfere with the Facilities or the exercise of the City's rights. Grantor
may raise, but not lower the level of the surface of the Easement Property, provided that any
such change in the level of the surface of the Easement Property may not unreasonably interfere
with or prevent the use of the Easement Property for the Easement Purpose. Grantor or its
successors or assigns must observe and exercise all notification laws as per the Underground
Facility Damage Prevention and Safety Act, also known as "ONE CALL" & "CALL BEFORE
YOU DIG ", when working in or near the Easement Property. To the extent that such laws and
codes apply, Grantor or its successors or assigns must observe all safety codes and laws which
apply to working along, within and or near the Easement Property and Facilities, including
O.S.H.A., the Texas Health and Safety Code, the National Electric Code, and the National
Electrical Safety Code.
Exceptions to Conveyance and Warranty: This conveyance is made by Grantor and accepted
by Grantee subject to any and all existing easements, covenants, rights -of -way, conditions,
restrictions, outstanding mineral interests and royalty interests, if any, relating to the Easement
Property, to the extent, and only to the extent, that the same may still be in force and effect, and
either shown of record in the office of the County Clerk of the County in which any part of the
Property is located, or that may be apparent on the Property.
Terms: The following terms apply to this easement:
1. Character of Easement. The easement is exclusive to the city for water and sewer
utilities; otherwise, it is non - exclusive provided that the City or Grantor may allow
utilization: of the easement for utility purposes and that (i) easements conveyed to
other utility providers involving the Easement Property will be subordinate to the
City's easement, and (ii) any other utility provider must cooperate with the City when
locating its Facilities within the Easement Property to assure that none of the City
Facilities are damaged or functionally impaired. Grantee will also have reasonable
rights of ingress and egress to and from said Easement Property, together with
reasonable working space, for the purposes of erecting, installing, operating,
maintaining, replacing, inspecting and removing the Facilities, together with the
additional right to remove from the Easement Property and land immediately
adjoining thereto, all bushes, trees and parts thereof, any vegetation or other
structures or improvements with are within, protrude, bisect, encroach or overhang
into the Easement Property and which, in the sole opinion of Grantee, endanger or
may interfere with the efficient, safe and proper operation and maintenance of the
Facilities.
2. Duration. The duration of the easement is perpetual and irrevocable.
3. Easement Improvements. All matters concerning the design, construction,
installation, maintenance, replacement and removal of the Facilities are at the sole
discretion of the City and/or it's assigns, subject to performance of it's obligations
under this agreement. All Facilities or other improvements constructed within, on or
under the Easement Property will be and remain the property of the City or its
assigns. To the extent allowed by the Constitution and the laws of the State of Texas,
the City and/or its assigns assumes the entire responsibility for the construction and
maintenance of their respective Facilities, and nothing contained herein will ever be
construed to place upon Grantor any manner of liability for injury to or death of
persons or for damage to or loss of property arising from or in any manner connected
with the acts, conduct or negligence of the City and/or its assigns in the construction
and maintenance of the Facilities. In the event Grantor places surfacing materials,
landscaping or other permitted improvements over and across the Easement Property
or portions thereof (the Grantor Improvements), the City and/or its assigns will use
ordinary care to minimize damage to Grantor Improvements in the event repair,
replacement or maintenance of the Facilities is required. Should it become necessary
at any time subsequent to completion of the Force Main and Water Main for Grantee
to enter the Premises for the purpose of maintaining, repairing, operating or altering
the Force Main and Water Main in any way, Grantee shall, after each entry upon the
Premises, leave the Premises substantially at the same level and condition that it was
in prior to such entry to the full extent reasonably practicable.
4. Enforcement. If there is any breach or threatened breach of this easement by any
party or their successors or assigns, and the default or threat continues after the
claiming party gives the defaulting party notice of the claim of default and a
reasonable opportunity to cure the default (if the default is capable of being cured),
then the claiming party may enforce the terms of this easement by restraining order
and by temporary and permanent injection, prohibiting such breach and commanding
the offending party to comply with all the terms of this easement. Restraining orders
and injunctions will be obtainable upon proof of existence of any breach or threatened
breach, and without the necessity of proof of inadequacy of legal remedies or
irreparable harm, and will obtainable only by the parties hereto or those benefited
hereby; provided, however, that the act of obtaining an injunction or restraining order
will not be deemed to be an election of remedies or a waiver of any other right or
remedies available at law or in equity.
5. Attorneys' Fees. Any party who is the prevailing party in any legal proceeding
against any other party brought under or in connection with this agreement or the
subject matter hereof, is additionally entitled to recover reasonable attorneys' fee,
expert fees, and all other litigation expenses.
6. Effect of Waiver or Consent. No waiver or consent, express or implied, by any party
to this easement of any breach by any party in the performance by such party of its
obligations hereunder will be deemed or construed to be a consent to or a waiver of
any other breach and the performance by such party of the same or any other
obligations of such party hereunder. Failure on the part of a party to complain of any
act of any party or to declare any party in default, regardless of how long such failure
continues, will not constitute a waiver by such party of its rights hereunder until the
applicable statute of limitations period has run.
7. General Provisions.
(a) This agreement bind and inures to the benefit of the parties hereto and their
respective successors and assigns.
(b) This agreement contains the complete agreement of the parties and cannot be
varied except by written agreement. The parties agree that there are no oral
agreements, representations or warranties that are not expressly set forth in
this agreement.
(e) Each party agrees to execute and deliver any additional documents and
instruments and to perform any additional acts necessary or appropriate to
perform the terms, provisions and conditions of this agreement and all
transactions contemplated by this agreement.
(d) This agreement will be construed under the laws of the State of Texas without
regard to choice of law rules of any jurisdiction. Venue will lie in the courts
of Comal County, Texas.
(e) If any provision in this agreement is for any reason unenforceable, to the
extent the unenforceability does not destroy the basis of the bargain between
the parties, the unenforceability will not affect any other provision hereof, and
this agreement will be construed as if the unenforceable provision had never
been a part of the agreement. Whenever the contact requires, the singular will
include the plural and neuter includes the masculine or feminine gender, and
vice versa. Article and section headings in this agreement are for reference
only and are not intended to restrict or define the text of any section. This
agreement will not be construed more or less favorably between the parties by
reason of authorship or origin of language.
(f) Any notice required or permitted under this agreement must be in writing.
Any notice required by this agreement will be deemed to be delivered
(whether actually received or not) when deposited with the United States
Postal Service, postage prepaid, certified mail, return receipt requested, and
addressed to the intended recipient at the address shown in the agreement.
Notice may also be given by regular mail, personal delivery, courier delivery,
facsimile transmission or other commercially reasonable means and will be
effective when actually received. Any address for notice may be changed by
written notice delivered as provided herein.
(g) This agreement may be amended, modified or terminated, in whole or in part,
only by the written agreement of the parties hereto.
(h) In the event of a deficiency in title or actions taken by others which results in
the relocation of Grantee's Facilities, the Grantor herein, its successors and
assigns, will be responsible for all costs associated with the relocation and/or
removal of Grantee's Facilities.
EXECUTED as of the dates in the acknowledgments below, to be effective, however, as
of the 1st day of June, 2011.
GRANTOR:
Aurora Je ada Pac eco, an individual
GRANTEE:
City Manager, City of Schertz
STATE OF TEXAS
COUNTY OF BEXAR
This instrument was acknowledged before me on the ! /�day of
2011, by Aurora Jean Sada Pacheco, an individual.
Er� pE8FA D. JONES Notary Public stale of Texas My commission Expires Notary Public in an for the State of Texas
July 7, 2013
STATE OF TEXAS
COUNTY OF GUADALUPE
Thi ' st ent was acknowledged before me on the C %day of ,
2011, by r,s City Manager of the City of Schertz, Texas, a body corporate and politic
and a political subdivision of the State of Texas.
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NOTARY PUBLIC
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FORD
Date; July 22, 2010
Project No: 2305.00
EXHIBIT
A
VA
E INC.
FIELD NOTES DESCRIPTION
UTILITY EASEMENT
Page I of 2
Field notes describing 0.531 acres (23,115.57 Sq. Ft.) of land, situated in the C.M. Gahagan Jr.
Survey No. 258, Abstract No. 182, Abstract No. 182, Comal County, Texas, being a portion of
the remainder of a 64.5 acre tract of land conveyed to Aurora Jean Sada Pacheco recorded in
Document No. 9806002004 of the Official Public Records of Comal County, Texas and
contained within the hereon described easement is a 10 foot waterline easement conveyed to
Solms Water Supply Corporation =Now owned by New Braunfels Utilities recorded in Volume
136 Page 445 of the Deed Records of Comal County, Texas, being more particularly described as
follows;
BEGINNING: at a'' /z inch iron rod found on the Southeastern Right of Way line of Interstate
Highway 35 for the Northeastern comer of the remainder of the said 64.5 acre tract, the same
being the Northwestern corner of a remainder of a 18.0 acre tract referred to as Tract 2 conveyed
to Barbara A. Wright in Document No. 200906025647 of the Official Public Records of Comal
County, Texas, for the Northeastern corner of this easement;
THENCE: S 13 058'42" E —17.22 feet along the Pastern line of the remainder of the said 64.5
acre tract,'the Western line. of the remainder of the said 18.0 acre tract to a point for the
Southeastern corner of this easement;
THENCE: S 54 018'47" W — 806.46 feet across the remainder of the said 64.5 acre tract to a
point for a corner of this easement;
THENCE: S 54°25'47" W — 195.58 feet continuing across the remainder of the said 64.5 acre
tract to a point for a comer of this easement;
THENCE: S 59°22'42" W — 249.04 feet continuing across the remainder of the said 64.5 acre
tract to a point for a comer of this casement;
THENCE: S 33048'16" W -- 195.66 feet continuing across the remainder of the said 64.5 acre
tract to a point on the Eastern right of way line of Schwab Road, the Western line of the
remainder of the said 64.5 acre tract, for a comer of this easement;
THENCE: Along the Eastern line of said Schwab Road, the Western line of the remainder of
the said 64.5 acre tract, a curve to the left having a Delta angle of 01 043'06 ", a Radius of 756.80
feet, an Are length of 22.70 feet and a Chord bearing of N 11001'13" W — 22.70 feet to a broken
Texas Department of Transportation right of way monument found for a corner of the remainder
of the said 64.5 acre tract, a comer of Interstate Highway 35, for a corner of this easement;
THENCE; N 33 °48'16" E- 183.20 feet along the cutback line of Interstate Highway 35 and
Schwab Road, a line of the remainder of the said 64.5 acre tract to a point for a comer of that
certain 0.129 acre Texas Department of Transportation Controlled Access Tract recorded in
10927 WYE DRIVE, SUITE 104, SAN ANTONIO, TEXAS 78717 (210) 590 -4777 FAX: 590 -4940
1- 800.332 -3109 Web Site; www.fordengineering.com TBPE No. F -1162
EXHIBIT
FORD a A
RING, Z-F INC.
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Page 2 of 2
Document No. 9806019606 of the Official Public Records of Comal County, Texas, for a corner
of this easement;
THENCE. N 59 022'42" E along the Southeastern line of the said 0.129 acre controlled access
deed, a line of remainder of the said 64.5 acre tract, at 33.00 feet pass a Texas Department of
Transportation right of way monument found, a distance in all of 251.98 feet to a Texas
Department of Transportation right of way monument found for a corner of the said 0.129 acre
controlled access tract, a corner of the remainder of the said 64.5 acre tract, for a comer of this
easement;
THENCE. N 54 025'47" E — 194.87 feet continuing along the Southeastern line of the said 0.129
acre controlled access tract, a line of the remainder of the said 64.5 acre tract to a Texas
Department of Transportation right of way monument found for a comer of the said 0.129 acre
tract, a corner of the remainder of the said 64.5 acre tract, for a corner of this easement;
THENCE: N 5498'47" E- 812.82 feet along the Southeastern line of said interstate Highway
35, the Northwestern line of the remainder of the said 64.5 acre tract to the POINT OF
BEGINNING and containing 0.531 acres (23,115.57 Sq. Ft.) of land, according to a survey
made on the ground under my supervision;
Reference Bearing is NAD 83 Texas State Plane Coordinate System, Texas South Central
Zone.
Corresponding plat prepared.
Project No: 2305.00 U.E.
Rex L. Hackett
Registered Professional Land Surveyor
License Number 5573
10927 WYE DRIVE, SUITE 104, SAN ANTONIO, TEXA5 78217 (210) 590 -4777 FAX: 590 -4940
1- 800 - 332 -3109 Web Site: www.fordengineering.com TBPE No. F -1162
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