Deeds - 10/20/2011 - Utility Easement, 0.177 ac., Warren Birdsell League, A-6, Frances E. Byrd & Lobo Malo to CoH - 10/20/2011WLD:em
UTILITY EASEMENT
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION
FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY
BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL
SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
Date: October 19, 2011
Grantor: Frances E. Byrd, Trustee of the Byrd Family Trust, and Lobo Malo Investments, Inc., a
Texas corporation
Grantor's Mailing Address: P. O. Box 6139, Huntsville, Walker County, Texas 77342-6139
Grantee: The City of Huntsville, a home -rule municipal corporation of the State of Texas
Grantee's Mailing Address: 1212 Avenue M, Huntsville, Walker County, Texas 77340
Easement Property:
Being a strip of land twenty (20.00) feet in width, containing 0.177 acre, more or less,
lying and being situated in the WARREN BIRDSELL LEAGUE, Abstract No. 6,
Walker County, Texas, upon, over and across a part of the residue of a called 15.769
acre tract conveyed to Lobo Malo Investments, Inc. by deed recorded in Volume 497,
Page 749, Official Public Records of Walker County, Texas, and also being conveyed
to Frances E. Byrd, Trustee of the Byrd Family Trust by deed recorded in
Volume 803, Page 860, Official Public Records of Walker County, Texas, said 0.502
acre being more particularly described by metes and bounds on Exhibit "A" and
shown on a Plat on Exhibit "B" attached hereto and incorporated herein for all
purposes.
Easement Purpose:
Solely for the installation, construction, operation, maintenance, inspection, testing,
replacement, repair, alteration, move location and removal ofunderground utility lines
and related facilities (the "Facility") to provide utility services by Grantee or Grantee's
successors to customers or users of such services.
Consideration:
Good and valuable consideration, the receipt and sufficiency of which are
acknowledged by Grantor.
Reservations from Conveyance:
For Grantor and Grantor's heirs, successors, and assigns, a reservation of all the oil,
gas and other minerals owned by Grantor that are in and under the Easement Property
and that may be produced from it.
Exceptions to Warranty:
1. all reservations, covenants, conditions, restrictions, building set -back lines,
easements and rights-of-way, if any, that affect the Easement Property;
2. all mineral severances, mineral reservations, royalty reservations and mineral
leases, if any, that affect the Easement Property; and
3. all laws, ordinances and regulations ofthe United States of America and of the
State of Texas, or any political subdivision thereof, including, but not limited
to, those of any county, city, village and/or governmental district that affect
the Easement Property.
Grant of Easement:
Grantor, for the Consideration and subject to the Reservations from Conveyance and
Exceptions to Warranty, grants, sells, and conveys to Grantee and Grantee's
successors, an easement over, upon, across and under the Easement Property for the
Easement Purpose only (collectively, the "Easement"), to have and to hold the
Easement to Grantee and Grantee's successors only for as long as the Easement is
used solely for the Easement Purpose. Grantor binds Grantor and Grantor's heirs,
successors, and assigns to warrant and forever defend the title to the Easement in
Grantee and Grantee's successors against every person whomsoever lawfully claiming
Page 1 of 4
or to claim the Easement or any part of the Easement, except as to the Reservations
from Conveyance and Exceptions to Warranty, to the extent that such claim arises 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. Character and Duration of Easement. The Easement is only for the benefit of
Grantee and Grantee's successors and shall be used by Grantee and Grantee's successors only for the
Easement Purpose. The Easement shall automatically terminate when it is no longer used by Grantee
or Grantee's successors for the Easement Purpose.
2. Reservation of Rights. Grantee's right to use the Easement Property is nonexclusive,
and Grantor reserves for Grantor and Grantor's heirs, successors, and assigns the right to use all or
part of the Easement Property in conjunction with Grantee as long as such use by Grantor and
Grantor's heirs, successors, and assigns does not interfere with the use of the Easement Property by
Grantee for the Easement Purpose, and the right to convey to others the right to use all or part of the
Easement Property in conjunction with Grantee, as long as such further conveyance is subject to the
terms of this agreement.
3. Use. Grantee's use of the Easement Property shall not unreasonably interfere with
Grantor's use ofthe Easement Property, however, Grantor, except as otherwise provided for herein,
shall not construct, nor permit to be constructed or erected, any permanent structure within the
Easement Property without the express prior written consent of Grantee, and Grantee shall have the
right to remove or prevent the construction of any permanent structure not consented to by Grantee
without reimbursement to Grantor or Grantor's heirs, successors, and assigns, or licensees. Grantor
reserves the right to erect fences across and upon the Easement Property provided that such fences
will not injure or interfere with Grantee's rights under this agreement and provided that such fences
shall have gates, openings, or removable sections which will permit Grantee access to all parts of the
Easement Property.
4. Improvement and Maintenance of Easement Property. Improvement and maintenance
of the Easement Property will be at the sole expense of Grantee. Grantee has the right to eliminate
any encroachments into the Easement Property, unless otherwise provided for herein. All matters
concerning the Facility and its configuration, construction, installation, maintenance, replacement, and
removal are at Grantee's sole discretion. No portion of the Facility shall ever be located upon the
surface of the Easement Property. Grantee shall restore the surface of the ground of the Easement
Property to the same or similar condition which it was prior to initial installation of the Facility and,
in the event of future repair, replacement, inspection or maintenance work, shall likewise restore the
surface of the ground of the Easement Property. Grantee shall not cut, nor in any way damage, any
timber, regardless of age on Grantor's lands adjacent to said Easement Property. Grantee shall not
in any way damage any portion of Grantor's real property or improvements thereon which are
adjacent to the Easement Property.
5. 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 Grantor and Grantor's heirs, successors and
assigns or by Grantee and Grantee's successors; 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.
6. 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.
7. Binding Effect. This agreement binds and inures only to the benefit ofthe Grantee and
Grantee's successors and to Grantor and Grantor's heirs, successors and assigns.
8. Choice of Law. This agreement will be construed under the laws ofthe state ofTexas,
without regarding to choice -of -law rules of any jurisdiction. Venue is in the county or counties in
which the Easement Property is located.
9. 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.
Page 2 of 4
10. Waiver of Default. It is not a waiver of or consent to default if the nondefaulting party
fails to declare immediately a 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.
11. 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 ofthis agreement and all transactions contemplated by the same.
12. Indemnity. To the extent not prohibited by applicable law, each party agrees to
indemnify, defend, and hold harmless the other party from any loss, attorney's fees, expenses, or
claims attributable to breach or default of any provision of this agreement by the indemnifying party.
13. Integration. This agreement contains the complete agreement ofthe 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.
14. Legal Construction. Ifany provision in this Easement 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.
15. 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.
16. Recitals. Any recitals in this agreement are represented by the parties to be accurate,
and constitute a part of the substantive Easement.
17. Time. Time is of the essence. Unless otherwise specified, all references to "days" mean
calendar days. Business days exclude Saturdays, Sundays, and legal public holidays. If the date for
performance of any obligation falls on a Saturday, Sunday, or legal public holiday, the date for
performance will be the next following regular business day.
GRANTOR:
RANCES E. BYRD, rustee of the Byrd Family
Trust
LOBaRODNEY
VESTMENTS, INC.
By:
L. YRD, President
THE STATE OF TEXAS §
COUNTY OF WALKER §
This instrument was acknowledged before me on the day of October, 2011, by
FRANCES E. BYRD, Trustee of the Byrd Family Trust.
JOAN T. JOLLY
Notary Public
STATE OF TEXAS
Comm. Exp. July 20, 2014
Page 3 of 4
THE STATE OF TEXAS
COUNTY OF WALKER §
This instrument was acknowledged before me on the ? day of October, 2011, by
RODNEY L. BYRD, President of LOBO MALO INVESTMENTS, INC., a Texas corporation, on
behalf of said corporation.
JOAN T. JOLLY OT BLIC, STATE
Notary Public
STATE OF TEXAS
Comm. Exp. July 20, 2014
GRANTEE'S ACCEPTANCE AND APPROVAL
The City of Huntsville, Texas, accepts this Utility Easement and agrees to and approves all
of the terms and provisions set forth in it.
THE CITY OF HUNTSVILLE, TEXAS
By:
City Manager
A EST:
City Secretar
THE STATE OF TEXAS
COUNTY OF WALKER §
This instrument was acknowledged before me on the A I IA- day of October, 2011, by
.Km t)Q i n.2 , City Manager of THE CITY OF HUNTSVILLE, TEXAS.
MART JOYNER
'®' Notary Public NOTARY PTJBLIC, STATE OF TEXAS
STATE OF 0AS
9�OFPS My Comm. Exp. 08/1712014
Page 4 of 4
CITY OF HUNTSVILLE, TEXAS
Public Works - Surveying
448 State Hwy. 75 North
Huntsville, Texas 77320
THE STATE OF TEXAS §
COUNTY OF WALKER §
I, Leonard E. Woods, Registered Professional Land Surveyor No. 2524, do hereby certify that the
following field notes represent a survey made on the ground of the following described tract or parcel of
land located in Walker County, Texas. Coordinates and bearings herein are referred to the Texas
Coordinate System of 1983, Central Zone and are based on the position of National Geodetic Survey
(formerly known as the U. S_ Coast & Geodetic Survey) Primary Airport Control Station (PACS)
monument designated "T39 A" having published NAD 83 (1993) coordinates of N= 3,128,437.762
meters and E= 1,154,289.433 meters. Distances herein are U. S. Survey Feet in "Grid" units and may be
converted to "Geodetic Horizontal" by dividing by a combined scale factor of 0.99988.
PROPOSED 20 FOOT WIDE UTILITY EASEMENT (0.I77AC.)
UPON
LOBO MALO INVESTMENTS, INC. PROPERTY
AND
FRANCES E. BYRD, TRUSTEE PROPERTY
WARREN BIRDSELL LEAGUE, A-6, WALKER COUNTY, TEXAS
Being a strip of land twenty (20.00) feet in width, containing 0.177 acre of land, situated in the
WARREN BIRDSELL LEAGUE, Abstract No. 6, Walker County, Texas, and being out of, upon and a
part of the residue of a called 15.769 acre tract described in a Deed fi•om Herman L. Byrd to Lobo Malo
Investments, Inc. dated March 11, 2002 recorded in Volume 497, page 749, Official Public Records of
Walker County, Texas and also in a Deed from Frances E. Byrd, Individually and as Independent
Executrix of the Estate of Herman L. Byrd, deceased to Frances E. Byrd, Trustee of the Byrd Family
Trust dated January 2, 2007 recorded in Volume 803, page 860, Official Public Records, said twenty
(20.00) foot wide strip being described by metes and bounds as follows:
BEGINNING, at concrete highway right-of-way monument found in the south line of said Byrd
15.769 acre tract and the north highway right-of-way line of State Highway No. 75, said monument
having coordinates of N= 10,264,702.07 feet and E= 3,783,536.41 feet;
THENCE N 75°34'03" W, with the south line of said Byrd 15.769 acre tract and the north
highway right-of-way line of State Highway No. 75, a distance of 255.37 feet to a point for the most
southerly southeast corner of a 20 foot wide (0.502 Ac.) Utility Easement granted to the City of
Huntsville, Texas by Frances E. Byrd, Trustee of the Byrd Family Trust, and Lobo Malo Investments,
Inc. dated November 11, 2010 recorded in Volume 960, page 795, Official Public Records;
THENCE N 14028'21" E, with the most southerly east line of said 20 foot wide (0.502 Ac.)
Utility Easement, a distance of 20.00 feet to its most southerly northeast corner;
THENCE S 75034'03" E, parallel with and 20.00 feet northerly (as measured at right angles)
from the south line of said Byrd 15.769 acre tract and the north right-of-way line of State Highway No.
75, a distance of 255.37 feet to a point for corner within said Byrd 15.769 acre tract;
THENCE S 7531'47" E, continuing parallel with and 20.00 feet northerly (as measured at right
angles) from the south line of said Byrd 15.769 acre tract and the north right-of-way line of State
Highway No. 75, a distance of 148.34 feet to the northwest corner of a 20 foot wide (0.0. 157 Ac.) Utility
Easement granted to the City of Huntsville, Texas in said Volume 960, page 795, Official Public
Records;
THENCE S 75002'54" W, with the west or northwest line of said 20 foot wide (0.157 Ac.)
Utility Easement, a distance of 40.71 feet to a point for its southwest corner in the south line of said Byrd
tract and the north right-of-way line of State Highway No. 75, from which a concrete highway right -of -
EXHIBIT "A"
Page 1 of 2
• 20 Ft. wide — 0.177 Ac. U.E.
Frances E. Byrd, Trustee, et al
W. BIRDSELL LEAGUE, A-6
Walker County, Texas
Page
way monument found for the southeast corner of said Byrd 15.769 acre tract bears S 75°31'47" E 761.77
feet;
THENCE N 7531'47" W, with the south line of said Byrd 15.769 acre tract and the north right-
of-way line of State Highway No. 75, a distance of 112.88 feet to the POINT OF BEGINNING.
NOTE: For further information, see Plat of Proposed Utility Easement labeled Exhibit `B" prepared
concurrently with the legal description herein.
Surveyed: July 2010. /(
Signed iA�t' C
1 ,(/
Leonard E. Woods
Reg. Prof. Land Surveyor No -2524
Y:\SURVEYORSTROJECTSkCOH08kUE\O7iO3lkD7lO3l-4R3.fns.doc
...:..............
LEONARD E. WOODS
. ; A 2524
EXHIBIT "A"
Page 2 of 2
n•gym q no
o o �ci",� yo o �
m .*c deo �Ouo CoQ Q Cn
�.N N.wNo0 f i, �i �3j
L.� A' M• mono oeN9,0
L,
o L. o
is �mvn O"•r osm� mQA
mz m"o 's Nn 'vn�N �o oo _q I.
mo
Ow Wzm .9 nw
m No Vii+ 3=u1°i �Aoogo �b O y
co G
E 3� oa'tnQ y 3n (Tl
v m
Ou �wjC
C' N m mZ D..,y V Op v l
'm ,p 3 n<_...m" of Cp
n o c 3
'o
' o,N�Nm :�a
w
w
b
G)N zo N r r WoNrer ure d BOiidin9
m c w m_ Y c%sedJ/er�o/s,
=w
OF
22
C
a
w 33 OOw
35 ab
0 HOZ f �"
o �
'i C
A
a
R) I oo ODj
< c I U m y
c
I y Ivo
� o
n'
n �
r o
1.
D O 0 I
m
D m D�
co
tV
m ro o yg
r Zn a
n T` m <p r- y
amL -< m o > I ��
m � � �O v co
CD ti
o �o�z m �zzm
m -4 >:5 � —i o
c NAD 83 `
v < �Q\
rn m -0 �
I X m
m
� EXHIBIT "B"