19-R-51 Water and waste water line easement agreementsRESOLUTION NO. 19 -R -51
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS APPROVING AND AUTHORIZING WATER AND
WASTE WATER LINE EASEMENT AGREEMENTS ACROSS
PRIVATE PROPERTY FROM ERH -NNN -3 LLC, A DELAWARE
LIMITED LIABILITY COMPANY AND OTHER MATTERS IN
CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the
City enter into agreement for Water and Waste Waterline Easement Agreement with ERH-
NNN-3 LLC, a Delaware limited liability company ( the "Grantors "), in the form attached hereto
as Exhibit A (the "Agreements "); and
WHEREAS, the City needs the Water and Waste Waterline Easement in connection with
the construction, operation, and maintenance of water mains to be relocated within the easement
in the vicinity of the intersection of FM 1103 with IH 35; and
WHEREAS, the Water and Waste Waterline Easement is necessary to relocated city
owned utilities ensure access for the maintenance of water and waste water mains in the future;
and
WHEREAS, the City Council has determined that it is in the best interest of the City to
accept the Water and Waste Waterline Easements in accordance with the terms of the
Agreements.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreements with the Grantor in substantially the form set forth on Exhibit A and to
accept the Water and Waste Waterline Easements in accordance with the terms of the
Agreements.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 23rd day of April, 2019.
CITY OFRTZ, TEXAS
R. Carpenter, Mayor
ATTEST:
en a Dennis, City Secretary
1*14111H0W:1
EASEMENT AGREEMENTS
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM
THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:
YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
WATER AND WASTEWATER EASEMENT AGREEMENT
THE STATE OF TEXAS §
COUNTY OF COMAL §
GRANT OF EASEMENT:
ERR -NNN -3 LLC, a Delaware limited liability company located at 15 West South
Temple, Suite 900, Salt Lake City, Salt Lake County, Utah, 84101 ( "Grantor "), for the sum of
Ten and No /100 Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and confessed, does hereby grant, sell and convey
unto THE CITY OF SCHERTZ, TEXAS, a Texas home -rule city, with offices located at 1400
Schertz Parkway, Schertz, Texas 78154 ( "Grantee "), an easement and right -of -way ( "Easement ")
upon and across the property of Grantor which is more particularly described on Exhibit "A ",
attached hereto and incorporated herein by reference ( "Easement Property "),
TO HAVE AND TO HOLD the same perpetually to Grantee and its successors and
assigns, together with the rights, and privileges and on the terms and conditions set forth below;
and Grantor, subject to the Exceptions, to Warranty, does hereby covenant and agree to
WARRANT AND FOREVER DEFEND title to the Easement herein granted, unto Grantee, its
successors and assigns, against every person whomsoever lawfully claiming or to claim the same
or any part thereof by, through or under Grantor, but not otherwise
Terms and Conditions: The following terms and conditions apply to the
Easement granted by this agreement:
1. Definitions. For the purposes of this grant of Easement certain tenns shall have
the meanings that follow:
(a) "Holder" shall mean Grantee and Grantee's heirs, successors and assigns
who at any time own any interest in the conveyance is subject to the terms
of this agreement.
(b) "Public Utility" shall mean potable water, wastewater, and reclaimed
wastewater facilities.
2. Character ofEasenwnt. The Easement granted herein is "in gross," in that there is
no "Benefitted Property." Nevertheless, the Easement rights herein granted shall
pass to Grantee's successors and assigns, subject to all of the Terms hereof. The
Easement rights of use granted herein are nonexclusive and irrevocable. The
Easement is for the benefit of Holder.
3. Purpose of Easement. The Easement shall be used for public water and
wastewater utility purposes, including placement, construction, installation,
replacement, repair, maintenance, relocation, removal, and operation of public
utility facilities and related appurtenances, or making connections thereto. The
Easement shall also be used for the purpose of providing access for the operation,
repair, maintenance, replacement and expansion of the public utility facilities and
related appurtenances.
4. Ter•nz. Easement shall be in perpetuity unless relinquished or abandoned by
ordinance or resolution by Grantee.
5. Reservation of Rights. Holder's right to use the Easement Property is
nonexclusive, and Grantor and Grantor's heirs, successors, and assigns retain the
right to use all or part of the Easement Property in conjunction with Holder as
long as such use by Grantor and Grantor's heirs, successors, and assigns does not
(i) interfere with the use of the Easement Property by Holder for the Easement
Purpose, nor (ii) may Grantor construct any building, structure or obstruction on
the Easement Property. The right to convey to others the right to use all or part of
the Easement Property in conjunction with Holder, as long as such further
conveyance is subject to the terms of this agreement. Written approval of Holder
must be obtained prior to any use or improvement of Easement Property to the
extent such use or improvement interferes with Holder's use of the Easement
Property for the Easement purpose.
6. Improvement and Maintenance of Easement Property. Subject to the provisions of
Section 7., immediately below, improvement and maintenance of the Easement
Property and the Facilities will be at the sole expense of Holder. Holder has the
right to eliminate any encroachments into the Easement Property. Holder has the
right to construct, install, maintain, replace, and remove the facilities under or
across any portion of the Easement Property. All matters concerning the Facilities
and their configuration, construction, installation, maintenance, replacement, and
removal are at Holder's sole discretion, subject to performance of Holder's
obligations under this agreement. Holder has the right to remove or relocate any
fences or other encroachments within the Easement Property or along or near its
boundary lines if reasonably necessary to construct, install, maintain, replace, or
remove the such facilities. Holder will also replace, to their original condition,
any sidewalk, landscaping, driveways or parking areas damaged in connection
with the work.
7. Maintenance of Surface Easement Proper-ty/Perrnitted Inrprovenaents.
Notwithstanding any contrary provision, Grantor shall retain the obligation to
maintain the surface of the Easement Property, including the obligation to
regularly mow or cut back vegetation and to keep the surface of the Easement
Property free of litter, debris, or trash. Any permitted improvement made-by
Grantor must comply with applicable ordinances, development codes and
engineering guidelines of the City of Schertz and must not conflict with use of the
easement for its intended purpose as described herein.
8. Equitable Rights of Enforcement. This Easement may be enforced by restraining
orders and injunctions (temporary or permanent) prohibiting interference and
commanding compliance. Restraining orders and injunctions will be obtainable on
proof of the existence of interference or threatened interference, without the
necessity of proof of inadequacy of legal remedies or irreparable harm, and will
be obtainable only by the parties to or those benefited by this agreement;
provided, however, that the act of obtaining an injunction or restraining order will
not be deemed to be an election of remedies or a waiver of any other rights or
remedies available at law or in equity.
9. Attorney's Fees. If either party retains an attorney to enforce this agreement, the
party prevailing in litigation is entitled to recover reasonable attorney's fees and
court and other costs.
IQ. Binding Effect. This agreement binds and inures to the benefit of the parties and
their respective heirs, successors, and permitted assigns.
11. Choice of Laiv. This agreement will be construed under the laws of the state of
Texas, without regard to choose -of -law rules of any jurisdiction. Venue is in the
county or counties in which the Easement Property is located.
12. Counterparts. This agreement may be executed in any number of counterparts
with the same effect as if all signatory parties had signed the same document. All
counterparts will be construed together and will constitute one and the same
instrument.
13. Waiver of Default. It is not a waiver of or consent to default if the non - defaulting
party fails to declare immediately default or delays in taking any action. Pursuit of
any remedies set forth in this agreement does not preclude pursuit of other
remedies in this agreement or provided by law.
14. Further Assurances. Each signatory party agrees to execute and deliver any
additional documents and instruments and to perform any additional acts
necessary or appropriate to perform the terms, provisions, and conditions of this
agreement and all transactions contemplated by this agreement.
15. Integration. This agreement contains the complete agreement of the parties and
cannot be varied except by written agreement of the parties. The parties agree that
there are no oral agreements, representations, or warranties that are not expressly
set forth in this agreement.
16. Exceptions to PVarranty. This grant is subject to any and all encumbrances and
easements of record, to the extent the same are valid and enforceable.
17. Legal Construction. Any provision in this agreement is for any reason
unenforceable, to the extent the unenforceability does not destroy the basis of the
bargain among the parties, the unenforceability will not affect any other provision
hereof, and this agreement will be construed as if the unenforceable provision had
never been a part of the agreement. Whenever context requires, the singular will
include the plural and neuter include the masculine or feminine gender, and vice
versa. Article and section headings in this agreement are for reference only and
are not intended to restrict or define the text of any section. This agreement will
not be construed more or less favorably between the parties by reason of
authorship or origin of language.
18. Notices. Any notice required or permitted under this agreement must be in
writing. Any notice required by this agreement will be deemed to be delivered
(whether actually received or not) when deposited with the United States Postal
Service, postage prepaid, certified mail, return receipt requested, and addressed to
the intended recipient at the address shown in this agreement. Notice may also be
given by regular mail, personal delivery, courier delivery, facsimile transmission,
or other commercially reasonable means and will be effective when actually
received. Any address for notice may be changed by written notice delivered as
provided herein.
19. Recitals /Exhibits. Any recitals in this agreement are represented by the parties to
be accurate and constitute a part of the substantive agreement. All exhibits
referenced herein are attached hereto and incorporated by reference herein for all
purposes.
20. Entire Agreement. This instrument contains the entire agreement between the
parties relating to the rights herein granted and the obligations herein assumed.
Any oral representation or modification concerning this instrument shall be of no
force and effect except for any subsequent modification in writing, signed by the
party to be charged.
IN WITNESS WHEREOF, this instrument is executed this 2nd day of April, 2019.
GRANTOR:
ERH- -3 LLC,
a Delaware limited liabilitv com an
ame: ark T. Burton
Title: President, CEO and Manager
THE STATE OF UTAH §
COUNTY OF SALT LAKE §
This instrument was acknowledged before me on Apri 2019, by
Mi ,(J�f 1 - BjAr'° an individual residing in G4 County, Utah.
Public
(seal) C4 qt r+ gt1 �x� €� �
3411 tt�ti2it
asst asp
GRANTEE:
AGREED AND ACCEPTED:
CITY OF SCHERTZ, TEXAS,
a Texas home -rule municipality
Mark Browne, City Manager
THE STATE OF TEXAS §
COUNTY OF GUADALUPE §
This instrument was acknowledged before me on , 2019, by
Mark Browne, City Manager of the City of Schertz, Texas, a Texas home -rule municipality, on
behalf of said municipality.
Notary Public Signature
(seal)
EXHIBIT "A"
EASEMENT PROPERTY
147KE OF US PW8
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,,,.FND. 1/2'
IRON ROD
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RAFAEL G AR A
ABSTIMI � 9 its c�6MLCOUNTY
ABSTRACT 140,138 GUADALUPrz COUNTY
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BEARING ARE BASED ON
TEXAS STATE PLANE COORDINATES,
SOUTH CENTRAL ZONE NAO 83/93;
1" = 60'
FND. 1/2"
IRON ROD
FND. 1/2"
+; IRON ROD
MKp. � 4020"
e �
THIS SURVEY WAS MADE ON THE GROUND, UNDER PLAT SHOWING
OF MY SUPERVISION AND COMPLIES WITH THE CURRENT 0,147 ACRE 6411.2 Sq. Ft.
�Q'••'�6T'•< TEXAS SOCIETY OF PROFESSIONAL SURVEYOR'S WATER / WASTEWATER ESMT.
y'�i� RF''•. STANDARDS AND SPECIFICATIONS FOR A CATAGORY
2, CONDI ON 2. SITUATED IN THE RAFAEL GARZA SURVEY
•'••'•••' • :•" NO. 88, A -175, COMAL CO, BEING A
......... REK L. HACi{ETT PORTION OF LOT 5, BLOCK 1 OF THE
8 HUBERTUS RETAIL SUBDIVISION AS SHOWN
.............. 'FSS���¢~'r . ` ON A PLAT RECORDED IN DOCUMENT NO.
�es �, REX L. HACKER 200808006485 OF THE MAP AND PLAT
'. RFr.ISTFRF0 PROFESSIONAL LAND SURVEYOR RECORDS OF COMAL COUNTY, TEXAS
G
D
L3
5 6T36:2()"
25.04
L4
N 59'53 4• E125.00'
1" = 60'
FND. 1/2"
IRON ROD
FND. 1/2"
+; IRON ROD
MKp. � 4020"
e �
THIS SURVEY WAS MADE ON THE GROUND, UNDER PLAT SHOWING
OF MY SUPERVISION AND COMPLIES WITH THE CURRENT 0,147 ACRE 6411.2 Sq. Ft.
�Q'••'�6T'•< TEXAS SOCIETY OF PROFESSIONAL SURVEYOR'S WATER / WASTEWATER ESMT.
y'�i� RF''•. STANDARDS AND SPECIFICATIONS FOR A CATAGORY
2, CONDI ON 2. SITUATED IN THE RAFAEL GARZA SURVEY
•'••'•••' • :•" NO. 88, A -175, COMAL CO, BEING A
......... REK L. HACi{ETT PORTION OF LOT 5, BLOCK 1 OF THE
8 HUBERTUS RETAIL SUBDIVISION AS SHOWN
.............. 'FSS���¢~'r . ` ON A PLAT RECORDED IN DOCUMENT NO.
�es �, REX L. HACKER 200808006485 OF THE MAP AND PLAT
'. RFr.ISTFRF0 PROFESSIONAL LAND SURVEYOR RECORDS OF COMAL COUNTY, TEXAS
ORD
IN11C
ANGr,
:1 Er, R,
Date: March 28, 2018
Proj ect No:1124.9211
FIELD NOTES DESCRIPTION
0.147Aere (6411.2 Sq. Ft.)
Water I Wastewater Easement
0.147 acre (6411.2 Sq. Ft.) easement, situated in the Rafael Garza Survey No. 98, Abstract
No. 175, Comal County, Texas, being a portion of portion of Lot 5, Block I of the Hubertus
Retail Subdivision as shown on a.plat recorded in Document No. 200806006465 of the Map
and plat Records of Comal County, Texas, conveyed to ERN NNN 3 LLC in Document No.
201806001972 of the Official Records of Comal County, Texas; being more particularly
described as follows:
BEGINNING: at a point on the Northern line of said Lot 5, Block 1, the Southern line of H
T S 2 Subdivision as shown on a plat recorded in Volume 8, Page 224 of the Map Records of
Comal County, Texas, for the Northwestern corner of that certain 0.061 acre tract of land
conveyed to the State of Texas in Document No. 201706053718 of the Official Records of
Comal County, Texas, for the Northeastern corner of this easement, from which a'fz inch iron
rod found for the Northeastern corner of said Lot comer of of the said State of Texas 0.06I
H T S 2 Subdivision, the same being the Northeastern
acre tract bears N 59 °53'41" E —10.37 feet;
THENCE: S 30 °26'06" E -- 256.60 feet across said Lot 5, Block 1 and along the
Southwestern line of the said State of Texas 0.061 acre tract to apoint on the Southem line of
said Lot 5, Block I, the Northern line
City of Sehertz in Document No. 2 00906013128 of the Officil Records of Comal County,
Texas, for the Southwestern eof is easement, from which a Mag. Nail fund bears N 60°36'20 E e
Southeastern ear7rer of thrs
9.08 feet;
THENCE; S 60 °36'20" W -- 25.00 feet along the Southern line of said Lot 5, Block 1, the
Northern line of the said City of Schertz 0.3689 acre tract to a point for the Southwestern
corner of this easement;
THENCE: N 30'26'06" W-256.29 feet across said Lot 5, Block 1 to a point on theNorthern
line of said Lot 5, Block 1, the Southern line of said H T S 2 Subdivision, for the Northwestern
corner of this easement, from which a Mag. Nail found for the Southwestern coiner of the
said H T S 2 Subdivision bears S 59 15341" W- 175.09 feet;
1 1
10927 WyE DRIVF, SUITE 104 SATE! ANT01\110, T3X, 78217 P. (210) 590 -4777 TBPLS 210)1 OO1II400
1 -500- 332 -3109 www.fordengincering.com TBPE No. F -11 62
ffi- r
F7,411
THENCE; N 59 °53'41" E — 25.00 feet along the Northern line of said Lot 5, Block 1, the
Southern line of the said H T S 2 Subdivision to the POINT OF BEGINNING and containing
0.147 acres (6411.2 Sq. Ft.) of land.
1124,9211 Hubedus Retail Lot 5 Water/ Wastewater Esmt -docx
REVISED 09-05-2018
BEARLIVGSARE:BA►SED ON THE STATE PLANE COORDINATE SYSTEM
ESTABLISHED FOR THE TEXAS SOUTH CENTRAL. ZONE, 4204, NAD 83.
Rex L. Hackett
Registered Professional Land Surveyor
License Number 5573
14927 WyE DR1 LIE SUITE 104 3Aid hN101410, TX 78217 1'. (2 10" 590 -4'797 F. (210) 590 -494{}
14-800-332-3109 vnywArdengineering.com - TBPE No. F -1162 TBPLS No. 10018400
EXCELREALTY
HOLDINGS
April 2, 2019
James A. Hooks, CFM
Assistant Public Works Director
City of Schertz
10 Commercial Place Bldg. #2
Schertz, Texas 78154
RE: FM 1103, New Braunfels, TX Water and Waste waterline Easement Agreement
Dear Mr. Hooks,
Per your request, enclosed is the Water and Wastewater - Easement Agreement which we've
notarized and executed. You are hereby authorized to record the easement upon (i) the City's
execution of the enclosed agreement with a fully executed version emailed to my attention at
nx ; and (ii) our receipt of a the check in the amount of $91,359.60.00
payable to ERH -NNN -3 LLC. Please have the check sent by overnight mail to my attention at:
Mark Burton, Excel Realty Holdings, LLC, 15 West South Temple, Salt Lake City, Utah 84101.
We greatly appreciate your efforts and patience in working with us in completing this process.
Sincerely,
ark T. Bu�fir o" n
President and CEO
Enclosure
Gateway Tower West
15 West South Temple, Suite 900
Salt Lake City, UT 84101
(801) 294 -2400