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19-R-13 Weiderstein Ranch Subdivision authorizationWHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the City enter into agreement with 1290 Entertainment, LLC, (the "Grantor ") for Access, Drainage, Water, and Wastewater Easements (the "Easements ") in substantially the forms attached hereto as Exhibit A (the "Agreements "); and WHEREAS, the City needs the Water, Wastewater, and Access Easements in connection with the operation, and maintenance of public water and wastewater main extensions through Lot 1 of the Wiederstein Ranch Subdivision; and WHEREAS, the Drainage Easements are necessary to ensure the maintenance of surface and subsurface drainage facilities; and WHEREAS, the City Council has determined that it is in the best interest of the City to accept the Easements in accordance with the terms of the Agreements. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS Ier_T4 I Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with the Grantor in substantially the form set forth on Exhibit A and to accept the Easements in accordance with the terms of the Agreement. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 5th day of February, 2019. CITY OFJ4RTZ, TEXAS R. Carpenter, Mayor ATTEST: l Brenda Dennis, City Secretary 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. THE STATE OF TEXAS § COUNTY OF § 1290 ENTERTAINMENT, LLC, 1290 Wonderworld Drive, Suite 1240, San Marcos, Hays County, Texas, 78666, ( "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 CITE' OF SCHERTZ, TEXAS, a Texas home -rule city, with offices located at 1400 Schertz Parkway, Schertz, Texas 78154 ( "Grantee "), an easement and right -of -way ( "Easement ") upon and across the property of Grantor which is more particularly described on Exhibit "A ", attached hereto and incorporated herein by reference ( "Easement Tract "), TO HAVE AND TO HOLD the same perpetually to Grantee and its successors and assigns, together with the rights, and privileges and on the terms and conditions set forth below; and Grantor, subject to the Exceptions, to Warranty, does hereby covenant and agree to WARRANT AND FOREVER DEFEND title to the Easement herein granted, unto Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. Terms and Conditions: The following terms and conditions apply to the Easement granted by this agreement: 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 water and 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. Purpose of Easement. The Easement shall be used for public utility and ingress /egress purposes. a. The Easement shall be used for public utility purposes including placement, construction, installation, replacement, repair, maintenance, relocation, removal, and operation of public utility facilities and related appurtenances, or making connections thereto. The Easement shall also be used for the purpose of providing access for the operation, repair, maintenance, replacement and expansion of the public utility facilities and related appurtenances. b. The Easement shall also be used for the purpose of ingress and egress across Grantor's property to the adjacent tract of property. 4. Term. Easement shall be in perpetuity unless relinquished or abandoned by ordinance or resolution and the official filing of a release document by Grantee. Reservation of Rights. Holder's right to use the Easement Property is nonexclusive, and Grantor and Grantor's heirs, successors, and assigns retain the right to use all or part of the Easement Property in conjunction with Holder as long as such use by Grantor and Grantor's heirs, successors, and assigns does not (i) interfere with the use of the Easement Property by Holder for the Easement Purpose, nor (ii) may Grantor construct any building, structure or obstruction on the Easement Property. The right to convey to others the right to use all or part of the Easement Property in conjunction with Holder, as long as such further conveyance is subject to the terms of this agreement. Written approval of Holder must be obtained prior to any use or improvement of Easement Property. 6. Improvement and Maintenance of Easement Property. Subject to the provisions of Section 7., immediately below, improvement and maintenance of the Public Utility 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 encroachments within the Easement Property or along or near its boundary lines if reasonably necessary to construct, install, maintain, replace, or remove the Facilities. Holder will also replace to their original condition any landscaping, driveways or parking areas that were in existence prior to the granting of the Easement Property and are damaged in connection with the work. Maintenance of Surface Easement Property /Permitted Improvements. Notwithstanding any contrary provision, Grantor shall retain the obligation to maintain the surface of the Easement Property, including the obligation to regularly mow or cut back vegetation and to keep the surface of the Easement Property free of litter, debris, or trash. Any permitted improvement made by Grantor must comply with applicable ordinances, development codes and engineering guidelines of the City of Schertz, and must not conflict with use of the easement for its intended purpose as described herein. 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. Attorney's Fees. If either party retains an attorney to enforce this agreement, the parry prevailing in litigation is entitled to recover reasonable attorney's fees and court and other costs. 10. Binding Effect. This agreement binds and inures to the benefit of the parties and their respective heirs, successors, and permitted assigns. 11. 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 Guadalupe County 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 parry 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 Warranty. 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 pennitted 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. M WITNESS WHEREOF, this instrument is executed this day of ,20 . THE STATE OF TEXAS § COUNTY OF § (Grantor's Name) (Grantor's Signature) This instrument was acknowledged before me on , 20, by , an individual residing in County, Texas. Notary Public Signature (seal) ClT7\ r` 1' : ► 1 K�1JI�IYM131 CITE' OF SCHERTZ, TEXAS, a Texas home -rule municipality THE STATE OF TEXAS COUNTY OF GUADALUPE Dr. Mark Browne, City Manager This instrument was acknowledged before me on , 20_, by Dr. Mark Browne, City Manager of the City of Schertz, Texas, a Texas home -rule municipality, on behalf of said municipality. Notary Public Signature (seal) laxtilillm'm CO LLJ LLI WZw IV cs t `y 1 0 ill` RV LL II II II II THE STATE OF TEXAS § COUNTY OF GUADALUPE § This Maintenance and Easement Agreement ( "Agreement ") is made by and between 1290 ENTERTAINMENT, LLC, 1290 Wonderworld Drive, Suite 1240, San Marcos, Hays County, Texas, 78666, ( "Grantor ") and the CITY OF SC HERTZ, TEXAS, a Texas home -rule city, with office located at 1400 Schertz Parkway, Schertz, Guadalupe County, TX 78154, ( "Grantee "), and is as follows: WHEREAS, the tract of real property that is the subject of this Agreement (the "Development Tract ") is located in Guadalupe County, Texas and are more particularly described on Exhibit "A ", attached hereto and incorporated herein by reference; and WHEREAS, Storm water drainage improvements have been designed and will be constructed on the Development Tract ( "Drainage System "); and WHEREAS, "Grantor" shall mean Grantor and Grantor's heirs, successors, and assigns who at any time own any interest in the conveyance; and WHEREAS, Grantor has agreed to maintain the Drainage System according to the guidelines set forth in Exhibit "B ", attached hereto and incorporated herein by reference ( "Maintenance Obligations "); and WHEREAS, Grantor desires to grant to Grantee an easement over the Tract upon which the Drainage System is located for the purpose of allowing Grantee to enforce the maintenance obligations; and WHEREAS, this grant of easement in no way imposes any requirement upon Grantee to expend money or resources towards the operation or maintenance of the Drainage System although it does allow Grantee to enforce the maintenance obligations via self -help remedies if it so elects; and NOW, THEREFORE, for and in consideration 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, Grantor hereby GRANTS, SELLS and CONVEYS, to Grantee a non - exclusive easement on, over, through and across the Development Tract to enforce the Maintenance Obligations ( "Easement "). This Agreement shall be subject to the following terms and provisions: 1. Maintenance Ohlij ations. Grantor will perform the Maintenance Obligations. 2. Character of Easement. The Easement is an easement in gross. 3. Duration of Easement. The Easement shall continue in perpetuity unless relinquished or abandoned by ordinance or resolution and the official filing of a release document by Grantee. 4. Purpose of Easement. Grantor covenants and agrees that this Easement shall authorize Grantee to enforce the Maintenance Obligations including the right of self -help. 5. Enforcement. Each party shall have and be entitled to enforce all rights and remedies at law or in equity including the following: a. If either party defaults in the performance of its obligations hereunder and the default is not cured within ten (10) days following delivery of written notice, then the non - defaulting party shall have the right to perform such obligation on behalf of the defaulting party, in which event the defaulting party shall immediately pay to the non - defaulting party all reasonable amounts expended. b. In the event of a breach by any party hereto of any obligation of such party under this Agreement, the non - defaulting party shall be entitled to injunctive relief mandating compliance herewith, and shall be entitled to obtain a decree hereunder. The undersigned hereby acknowledge and stipulate the inadequacy of legal remedies and irreparable harm which would be caused by the breach of this Agreement, and such non - defaulting party shall be entitled to relief by any and all other available legal and equitable remedies from the consequences of such breach. Any costs and expenses of any such proceeding, including reasonable attorney's fees, shall be paid by the defaulting party. 6. Entire Agreement. This Agreement contains the entire agreement between the parties relating to the rights granted. Any oral representations or modifications concerning this Agreement shall be of no force and effect except in a subsequent modification in writing, signed by the party to be charged. 7. Attorney's Fees. In the event of any controversy, claim, or dispute relating to this Agreement or the breach, the prevailing party shall be entitled to recover from the non - prevailing party reasonable expenses, attorney's fees, and costs. 8. indin! Effect. This Agreement, and the terms, covenants, and conditions shall be covenants running with the Development Tract and shall inure to the benefit of and be binding upon the heirs, personal representatives, successors, and assigns of each of the parties. 9. 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 Guadalupe County. 10. No Waiver. Except for a written waiver signed by the party to be charged, any action or inaction by any party with respect to any provision of this Agreement, including, but not limited to, a party's failure to enforce any provision of this Agreement, shall not constitute a wavier of that provision or any other provision of this Agreement. Any waiver by any party of any provision of this Agreement shall not constitute a waiver of any other provision of this Agreement. 11. Readings. Any section headings in this Agreement are for reference only and shall not modify or affect the interpretation of this Agreement in any manner whatsoever. 12. Notices. Any notice or communication required or permitted hereunder shall be deemed to be delivered, whether actually received or not, when deposited in the United States mail, postage fully prepaid, registered or certified mail and addressed to the intended recipient at the address shown herein, and if such address is not known, then at the last known address according to the records of the party delivering the notice. Notice given in any other manner shall be effective if and when received by the addressee. In witness whereof, this instrument is executed this day of 20 GRANTOR: 1290 Entertainment, LLC IN STATE OF TEXAS § COUNT' OF GUADALUPE § (Grantor's Name) (Grantor's Signature) This instrument was acknowledged before me on the day of 20 by an individual residing in County, Texas. Notary Public City of Schertz A Texas home -rule municipality Dr. Mark Browne City Manager, City of Schertz STATE OF TEXAS § COUNTY OF GUADALUPE § This instrument was acknowledged before me on the day of , 20 by Dr. Mark Browne, City Manager of the City of Schertz, Texas, a Texas home -rule municipality, on behalf of said municipality. Notary Public, State of Texas Exhibit: "A" Description of Development Tracts "B" Maintenance Obligations rOMMWIIe Description of Easement Area (as attached) kip ce -__--_- ( / | i - Maintenance Obligations The following guidelines are established for the maintenance and inspection of the Drainage System. Inspections: The Drainage and Detention System should be inspected at least once a quarter unless specified otherwise to evaluate if the system is functioning properly. One of these inspections should occur during or immediately following a rainfall event. Sediment Removal: All sediment and debris accumulation shall be removed from inlets, pipes, and outlet structures and drainage pathways downstream of drainage structures at least once bi- annually or anytime sediment accumulation is greater than 3 inches of depth in a surface feature or when flow is impacted. Mowing: The earthen side slopes, embankments, and bottom of the Drainage System shall be mowed at least once a quarter, or anytime vegetation height is greater than 12 inches. Mowing may be required more frequently for aesthetic purposes and to prevent the growth of weeds. For mowing operations, a mulching type mower will be utilized or all grass clippings will be caught and removed. Debris and Litter Control: During inspections, mowing, or other regular maintenance activities, all visible debris and litter will be removed from within the Drainage System. Special attention will be paid to debris within the facility that could block the outlet structures and alter drainage facility functionality. Erosion Control: Earthen portions of the facilities will be maintained with vegetative cover to control erosion. If during inspections or regular maintenance activities, any slumping or erosion is observed, the area will be re- graded and re- vegetated to original conditions. Nuisance Control: Standing water or constantly wet conditions within the facility can promote nuisance problems for nearby residents and businesses. These problems include odors, mosquitoes, weeds, and litter. If encountered, these problems will be addressed during regular maintenance operations. Record Keeping_ The property owner shall maintain records of the storm water management facilities including installation and of all maintenance and repairs. These records shall be maintained for a minimum of three years and be made available to City of Schertz during inspection of the facilities and at other reasonable times upon request.