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R-10-04-08-10E1 - 4/8/2010RESOLUTION NO. R -10-04-08-10E1 WHEREAS, the City has previously entered into a Consent Agreement with Blake Magee Investments, L.P., ("Original Developer") regarding the creation of Paloma Lake Municipal Utility District No. 1 and Paloma Lake Municipal Utility District No. 2, and WHEREAS, the Original Developer assigned its rights and obligations under the Consent Agreement to Paloma Lake Development, Inc. ("Developer"), and WHEREAS, the City now desires to enter into Amendment No. 2 to the Consent Agreement with the Developer, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City Amendment No. 2 to Consent Agreement with Paloma Lake Development, Inc., a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 8th day of April, 2010. ATTEST: SARA L. WHITE, City Secretary 0:\wdox\SCC1nts\0112\1005\MUNICIPAL\00187742.DOC/rmc )11 ALAN MCGRAW, Mayor City of Round Rock, Texas AMENDMENT NO. 2 TO CONSENT AGREEMENT THE STATE OF TEXAS COUNTY OF WILLIAMSON § § § EXHIBIT „A., The City of Round Rock, Texas, a home rule city located in Williamson County, Texas (the "City"), and Blake Magee Investments, L.P., a Texas limited partnership (the "Original Developer"), previously entered into a Consent Agreement dated effective September 22, 2005 (the "Original Consent Agreement"), under which the City and the Original Developer agreed on certain terms and conditions relating to the creation of Paloma Lake Municipal Utility District No. 1 and Paloma Lake Municipal Utility District No. 2 (individually, a "District" and collectively, the "Districts"). The Original Developer subsequently assigned its rights and obligations under the Consent Agreement to Paloma Lake Development, Inc., a Texas corporation (the "Developer"), with the consent of the City, as set forth in the Assignment of Consent Agreement for Paloma Lake Municipal Utility District No. 1 and Paloma Lake Municipal Utility District No. 2 and Consent to Assignment dated effective as of September 22, 2005. The Original Consent Agreement has previously been amended by Amendment No. 1 to Consent Agreement ("Amendment No. 1") dated effective as of May 31, 2007. The Original Consent Agreement, as previously assigned and amended, is referred to in this Amendment No. 2 to Consent Agreement (this "Amendment") as the "Consent Agreement ". The City and the Developer now wish to amend the Consent Agreement as provided in this Amendment. Therefore, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the City and the Developer agree as follows: 1. AMENDMENT TO SECTION 2.04. Subparagraph (f) of Section 2.04 of the Consent Agreement is amended to read as follows: (f) Progress Payments by City. The City agrees to pay a share of the cost of each phase of Line C, based on the incremental costs determined under Subsection (c), above, out of the City's capital improvement projects fund or other available City funds within 30 days of receipt of an invoice from the Developer. If at any time there are insufficient funds available to make any payments due to the Developer under this Section, the Developer will be entitled to a credit against any impact fees otherwise due to the City. 2. AMENDMENT TO SECTION 3.01(a). Subsection (a) of Section 3.01 is amended to read as follows: a. Off -Site Water Facilities to Be Constructed by the City. The City agrees to construct an off-site water transmission main consisting of a 36 -inch line segment from the City's existing 36 -inch line in FM 1460 along the south side of County Road 112 to the intersection of County Road 112 and County Road 117 and a 30 -inch line segment from the intersection of County Road 112 1 353624-10 03/15/2010 and County Road 117 along County Road 117 to Kiphen Road, as depicted on Exhibit H (Revised) (the "36 and 30 -Inch Off -Site Line"). The City will proceed with the design of, easement acquisition for and construction of the 36 and 30 -Inch Off -Site Line in accordance with Exhibit I. The City will also construct a 24 -inch water line from the termination of the 36 and 30 -Inch Off - Site Line at the intersection of County Road 112 and County Road 117 along County Road 112 to the intersection of County Road 112 and Paloma Lake Boulevard. (the "24 -Inch Water Line Segment"). The City agrees to construct the 24 -inch Water Line Segment when development within the Districts and City water service area dictate the need for the line, or as otherwise agreed by the City and the Developer. The Water Capacity Payment relating to the 24 -inch Water Line Segment, which has been calculated as described on Exhibit K, will be paid when the 24" Water Line Segment is constructed. If an easement is required for the construction of the 24 -inch Water Line Segment, the Developer will provide the City with a 20 -foot permanent waterline easement (the "20 foot Easement"), 14 feet of which will be located within the future right-of-way of County Road 112 located within the Districts' boundaries which is to be dedicated to the City (the "Right of Way") and six feet of which will be located within the 10 -foot landscape easement or landscape lot adjacent to Right of Way, and a 30 -foot temporary construction easement south of the 20 -foot Easement. The 20 -foot Easement will be in the form attached as Exhibit X, which is incorporated herein by reference. The City acknowledges that Oncor Corp. ("Oncor") currently provides electric service to the land within the Districts and has existing power poles, together with guy wires and related facilities, in place within the area to be included within the 20 -foot Easement. The Developer will reserve and may grant to Oncor a ten foot utility easement which will have as its center line the alignment of the existing power poles within the 20 -foot Easement (the "Oncor Easement") for the purpose of operating, maintaining, repairing, removing, reconstructing, upgrading and replacing its existing facilities. The Developer and/or Oncor may also grant telephone, cable television and other utility providers the right to use the Oncor Easement for overhead utility lines placed on Oncor's poles. Any electrical transformers shall be pole mounted. No surface transformer pull -boxes of any kind will be allowed within the 20 -foot easement. In addition, the Developer will have the right to make connections to County Road 112, to make utility crossings of the 20 -foot Easement at street intersections, and to make connections to utility facilities located within the 20 -foot Easement. Anything herein to the contrary notwithstanding, no further City approval of or consent to the Oncor Easement or these crossings and/or connections will be required. . 353624-10 03/15/2010 b. The City further agrees to construct an extension of the 24 -inch Water Line Segment from the intersection of County Road 112 and Paloma Lake Boulevard along County Road 112 to the intersection of County Road 112 and County Road 110 when development within the City's extraterritorial jurisdiction or the Districts dictate its construction or as otherwise mutually agreed by the City and the Developer. This extension, which will also be a 24 -inch line, is the same 24 -inch line described on Exhibit H (Revised) (the "24 -inch Water Line Extension"). The Developer will fund the unpaid portion of the Water Capacity Payment in progress payments according to the schedule contained in Section 3.08. If an easement is required for the construction of the 24 -inch Water Line Extension, the Developer will provide the City with a 20 -foot permanent waterline easement (the "20 foot Easement Extension"), 14 feet of which will be located within the Right of Way and six feet of which will be located within the 10 -foot landscape easement or landscape lot adjacent to Right of Way, and a 30 -foot temporary construction easement south of the 20 -foot Easement Extension. The 20 -foot Easement Extension will be subject to the same rights of the Developer and Oncor with respect to the Oncor Easement which are described in subsection a, above, and will also be in the form of the attached Exhibit X. 3. AMENDMENT TO SECTION 7.03. Section 7.03 of the Consent Agreement is deleted in its entirety, and the following new Section 7.03 is inserted in its place: Section 7.03 Fiscal Security for Public Improvements. If the Developer wishes to "lock in" the amount of the City's impact fees applicable to development in a newly platted subdivision section, the Developer must post fiscal with the City for all public improvements, including District water, wastewater and drainage improvements, at the time of recordation of the final plat for the subdivision. The Developer may elect not to post fiscal at the time of recordation of the final plat; however, in that case the City's impact fees applicable to development in the subdivision will be determined at the time of completion of construction of the utility infrastructure for the subdivision, as evidenced by the project engineer's certification of completion. If the City's impact fees are reduced in the future, the Developer will be entitled to pay the amount of the reduced impact fees rather than the impact fees as initially determined under this Section. 4. CREDIT FOR CERTAIN LINE A COSTS INCLUDED IN IMPACT FEE. Certain costs of Line A of the McNutt Interceptor were included in the City's wastewater impact fee, 'resulting in an overpayment by the Developer of $113.50 per LUE based on its cost participation in Line A under the Consent Agreement. Within 30 days of the date of this Amendment, the City agrees to refund the sum of $16,117.00 to the Developer for the 142 wastewater impact fees paid for new wastewater connections within the Districts through 353624-10 03/15/2010 September 30, 2009. Thereafter, within 30 days after the end of each future fiscal year (October 1 though September 30), the City will refund the Developer $113.50 for each additional impact fee paid for a new wastewater connection within the Districts during that fiscal year until such time as the Developer has received $113.50 for each wastewater connection within the Districts through build -out, not to exceed a maximum of $227,000 (based on 2,000 LUEs). 5. DEFINED TERMS. All terms delineated with initial capital letters in this Amendment that are defined in the Consent Agreement have the same meanings in this Amendment as in the Consent Agreement. Other terms have the meanings commonly ascribed to them. 6. EFFECT OF AMENDMENT. Except as specifically provided in this Amendment, the terms of the Consent Agreement continue to govern the rights and obligations of the parties, and all terms of the Consent Agreement remain in full force and effect. If there is any conflict or inconsistency between this Amendment and the Consent Agreement, this Amendment will control and modify the Consent Agreement. 7. EXECUTION; COUNTERPARTS. To facilitate execution, this Amendment may be executed in any number of counterparts, and it will not be necessary that the signatures of all parties be contained on any one counterpart. Additionally, for purposes of facilitating the execution of this Amendment: (a) the signature pages taken from separate, individually executed counterparts of this Amendment may be combined to form multiple fully executed counterparts; and (b) a facsimile signature will be deemed to be an original signature for all purposes. All executed counterparts of this Amendment will be deemed to be originals, but all such counterparts, when taken together, will constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned parties have executed this Amendment on the dates indicated below, to be effective on the date the last party signs. CITY OF ROUND ROCK By: Name: Title: Date: 353624-10 03/15/2010 STATE OF TEXAS COUNTY OF WILLIAMSON § § § This instrument was acknowledged before me this day of , 2010, by , of the City of Round Rock, Texas, a Texas home -rule municipality, on behalf of the municipality. Notary Public - State of Texas Name: My Commission Expires: 353624-10 03/15/2010 STATE OF TEXAS COUNTY OF WILLIAMSON § § § PALOMA LAKE DEVELOPMENT, INC., a Texas corporation By: Blake J. Magee, President Date: This instrument was acknowledged before me this day of , 2010, by Blake J. Magee, President of Paloma Lake Development, Inc., a Texas corporation, behalf of the corporation. Notary Public - State of Texas Name: My Commission Expires: 353624-10 03/15/2010 EXHIBIT "X" 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 LINE EASEMENT THE STATE OF TEXAS KNOW ALL BY THESE PRESENTS: COUNTY OF WILLIAMSON That PALOMA LAKE DEVELOPMENT, INC. ("Grantor"), for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration paid by the CITY OF ROUND ROCK, TEXAS, a municipal corporation situated in Williamson County, Texas with offices located at 221 East Main, Round Rock, Williamson County, Texas 78664 ("Grantee"), the receipt and sufficiency of which are hereby acknowledged, does hereby GRANT, SELL, DEDICATE and CONVEY unto Grantee a water line easement (the "Easement") under and across the following described property: The tract of land more particularly described by metes and bounds on Exhibit "A", attached hereto and incorporated herein by reference (the "Easement Tract"). TO HAVE AND TO HOLD the Easement and rights described herein unto Grantee and its successors and assigns, forever, and Grantor does hereby bind itself, and its successors and assigns, to warrant and forever defend, all and singular, the Easement and rights 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, subject to all easements, encumbrances and other matters of record or visible and apparent on the ground, including the Permitted Dedications and Improvements, as defined below. The Easement may be used for the purposes of location, placement, relocation, construction, operation, enlargement, maintenance, alteration, repair, reconstruction and removal of a water transmission line and related water line facilities. This conveyance is made and accepted subject to all easements, covenants, conditions and restrictions, if any, relating to the Easement Tract which are of record in Williamson County, Texas, to the extent that they are in effect and applicable to the Easement Tract or which are visible and apparent on the ground. The Easement and the rights and privileges herein granted will be perpetual. Except as otherwise provided herein with respect to the Permitted Dedications and Improvements (as defined below), the Easement and the rights and privileges granted herein are exclusive and Grantor covenants that it will not convey any other easement or conflicting rights 363109-3 03/11/2010 within the Easement Tract without the express written consent of Grantee, which consent will not be unreasonably withheld. The foregoing notwithstanding, Grantee acknowledges that a portion of the Easement Tract is currently being utilized by Grantor for landscaping and related improvements (the "Landscape Easement"); a portion of the Easement Tract is currently being utilized by Oncor Corp. for an overhead electric line and related improvements, including power poles and guy wires, and a portion of the Easement Tract will be dedicated by Grantor in the future as right-of-way for future improvements to County Road 112. Accordingly, this grant of the Easement by Grantor is expressly made subject to Grantor's express reservation of the following rights on behalf of Grantor, its successors and assigns (collectively, the "Permitted Dedications and Improvements"): a. the right to dedicate right-of-way for County Road 112 over a portion of the Easement Tract and the right of the recipient to make improvements within the dedicated right-of-way consistent with such dedication; b. the right to grant Oncor Corp. a ten -foot utility easement for power poles, required guy wires, and overhead or pole -mounted power lines, facilities and transformers, which easement will have as its center line the alignment of the existing power poles within the Easement (the "Oncor Easement"), and the right of Grantor and/or Oncor Corp. to grant telephone, cable television and other utility providers the right to use the Oncor Easement for overhead or pole -mounted utility lines and facilities on Oncor's poles only; c. the right to grant easements for utility crossings of the Easement Tract at street intersections only, and to make connections to utility facilities located or to be located within the Easement Tract; d. the right to make curb cuts and connections to County Road 112 in order to provide access to and from Grantor's remaining property over and across the Easement Tract; and e. the right to landscape and beautify the surface of the Landscape Easement, and to plant, alter, substitute, maintain, replace, inspect, protect and remove grasses, trees and shrubs, plants and foliage as well as fencing, signage, irrigation and lighting improvements within the Landscape Easement, and to convey the Landscape Easement to a homeowners' association or other grantee for purposes of exercise of Grantor's reserved rights with respect to of the Landscape Easement. Grantee expressly consents to the Permitted Dedications and Improvements, and no further approval by Grantee of any of such Permitted Dedications and Improvements will be required. Except as provided above with respect to the Permitted Dedications and Improvements, Grantee will have the right to review any proposed easement to determine the effect, if any, that it would have on Grantee's water line and related facilities within the Easement Tract and Grantee may require reasonable safeguards to protect the integrity of its water line and related facilities. Grantor also reserves, retains, and will continue to enjoy the right to use the surface of the Easement Tract for any and all purposes which do not materially interfere with or prevent the use by Grantee of the Easement. Grantor further grants to Grantee: 2 363109-3 03/11/2010 (a) the right to remove any stone, earth, gravel or caliche which may be excavated during the opening, construction or maintenance of any water line structure, improvement or facility, provided that the surface of the Easement Tract and any improvements which are included within the Permitted Dedications and Improvements are restored upon completion of the work as required below; (b) the right to trim, cut down and clear away trees and brush now or hereafter located on or adjacent to the Easement Tract which in the reasonable opinion of Grantee may be a hazard to any Grantor's facilities within the Easement or which otherwise interfere with Grantee's exercise of its rights hereunder. Any landscaping or other permitted improvements within the Landscape Easement which is damaged as a result of Grantee's use of the Easement must be restored upon completion of Grantee's work, as required below. All cutting and trimming within the Easement Tract must be conducted in a professional manner, using commercially reasonable means to protect the trees or shrubbery from disease or insect infestation, and all trimming and cutting will be at Grantee's sole risk. Grantee agrees to promptly remove all cuttings and trimmings from the Easement Tract, and to properly dispose of them. (c) the right to mark the location of the Easement by suitable markers set in the ground; provided that such markers are placed in fences or other locations which do not interfere with any reasonable use of the surface of the Easement Tract. (d) the right to temporarily use the property adjacent to the Easement Tract which is depicted on page _ of the attached Exhibit "A" (the "Temporary Construction Easement") as may be reasonably necessary for the initial construction and installation of a water line within the Easement. Upon Grantee's completion of the initial construction and installation of a water line within the Easement, Grantee must restore the surface of the Temporary Construction Easement and return it to the same or a condition substantially similar to the condition which existed prior to Grantee's entry onto the Temporary Construction Easement. The Temporary Construction Easement will be in effect from the first date construction begins within the Easement Tract and until the first to occur of: (a) January 1, 2016; or (b) 30 days after the initial water line within the Easement is sufficiently completed to be used for its intended purpose. As a portion of the consideration for this Easement, Grantee covenants and agrees to comply with the following, all of which will be deemed to be conditions of this grant: (a) Grantee must either cause to be replaced, or provide compensation for the replacement of, any improvements on Grantor's property which are relocated or damaged as a result of Grantee's or its contractors activities within the Easement Tract; (b) Grantee must promptly backfill any trench made by it on the Easement Tract and repair any damage it causes to the surface of the Easement Tract, any improvements included in the Permitted Dedications and Improvements, or Grantor's other property; and (c) Grantee must indemnify Grantor against any loss and damage caused by the exercise of its rights under this Easement Tract or by any wrongful or negligent act or omission of Grantee's agents or employees. 3 363109-3 03/11/2010 If any controversy, claim, or dispute arises relating to this Agreement or its breach, the prevailing party will be entitled to recover its reasonable expenses, attorneys' fees, and costs from the non -prevailing party. IN WITNESS WHEREOF, Grantor has caused this instrument to be executed this day of , 2010. PALOMA LAKE DEVELOPMENT, INC., a Texas corporation By: Blake J. Magee, President THE STATE OF TEXAS COUNTY OF WILLIAMSON This instrument was acknowledged before me on this the day of , 2010, by Blake J. Magee, President of Paloma Lake Development, Inc., a Texas corporation, on behalf of the corporation. Notary Public, State of Texas 4 363109-3 03/11/2010 After recording, please return to: Sheets & Crossfield, P.C. 309 East Main Street Round Rock, Texas 78664 5 363109-3 03/11/2010 ....•�w.wWu-0n.-pdcdw wviwM na CK EXHIBIT A FAR � i pill Ck No ra \ pC Q \ \ of �/ No n \ Nil \ \ \ \ t I ,\ I �\ 1 �\ 1 \\ 1 \\ 1 \\ t I I xl IRS \ No t 36 30 t \ t , t , t \ \ t ^+ ��` gD t\j`t tato cl � A cl , Oil o - ROUND ROCK, TEXAS PURPOSE. PASSION. PROSPERITY Agenda Item No. 10E1. Council Agenda Summary Sheet Consider a resolution authorizing the Mayor to execute Amendment No. 2 to the Consent Agenda Caption: Agreement with Paloma Lake Municipal Utility District Nos. 1 and 2. Meeting Date: April 8, 2010 Department: Water/Wastewater Utilities Staff Person making presentation: Michael Thane Director of Utilities Item Summary: The Developer and the City wish to revise the Consent Agreement as provided in this Amendment No. 2. A summary of these revisions are listed below. 1. The City agrees to reimburse the developer for the City's share of the cost of the McNutt Creek Wastewater Interceptor Line C from the City's wastewater capital improvement projects fund. 2. The City is required to construct a 24 -inch water line along County Road 112 on the north side of Paloma Lake MUDs. The date of completion of the 24 -inch water line is being amended to when development within the Districts and the City water service area dictate the need for the line, or as otherwise agreed by the City and the Developer. 3. Easements required for the construction of the 24 -inch water line segment, the Developer will provide the City a 20 -foot permanent water line easement and a 30 -foot temporary construction easement located within the Districts boundary. 4. If the Developer wishes to "lock in" the amount of the City's impact fees applicable to development in a newly platted subdivision section, the Developer must post fiscal with the City for the cost of all public improvements at the time of recordation of the final plat for the subdivision. If the Developer elects not to post fiscal at the time of recordation of the final plat, the impact fees will be determined at the time of completion of the utility infrastructure for the subdivision section. 5. Credit to the developer for overpayment of the construction cost of Line A of the McNutt creek interceptor. certain costs of the interceptor were included in the wastewater impact fee. Strategic Plan Relevance: Goal 27.0 "Ensure there is an adequate, affordable and safe water supply." Cost: N/A Source of Funds: N/A Date of Public Hearing (if required): N/A Recommended Action: Staff recommends approval of this resolution. EXECUTED DOCUMENT FOLLOWS AMENDMENT NO. 2 TO CONSENT AGREEMENT THE STATE OF TEXAS COUNTY OF WILLIAMSON The City of Round Rock, Texas, a home rule city located in Williamson County, Texas (the "City"), and Blake Magee Investments, L.P., a Texas limited partnership (the "Original Developer"), previously entered into a Consent Agreement dated effective September 22, 2005 (the "Original Consent Agreement"), under which the City and the Original Developer agreed on certain terms and conditions relating to the creation of Paloma Lake Municipal Utility District No. 1 and Paloma Lake Municipal Utility District No. 2 (individually, a "District" and collectively, the "Districts"). The Original Developer subsequently assigned its rights and obligations under the Consent Agreement to Paloma Lake Development, Inc., a Texas corporation (the "Developer"), with the consent of the City, as set forth in the Assignment of Consent Agreement for Paloma Lake Municipal Utility District No. 1 and Paloma Lake Municipal Utility District No. 2 and Consent to Assignment dated effective as of September 22, 2005. The Original Consent Agreement has previously been amended by Amendment No. 1 to Consent Agreement ("Amendment No. 1") dated effective as of May 31, 2007. The Original Consent Agreement, as previously assigned and amended, is referred to in this Amendment No. 2 to Consent Agreement (this "Amendment") as the "Consent Agreement ". The City and the Developer now wish to amend the Consent Agreement as provided in this Amendment. Therefore, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the City and the Developer agree as follows: 1. AMENDMENT TO SECTION 2.04. Subparagraph (f) of Section 2.04 of the Consent Agreement is amended to read as follows: (f) Progress Payments by City. The City agrees to pay a share of the cost of each phase of Line C, based on the incremental costs determined under Subsection (c), above, out of the City's capital improvement projects fund or other available City funds within 30 days of receipt of an invoice from the Developer. If at any time there are insufficient funds available to make any payments due to the Developer under this Section, the Developer will be entitled to a credit against any impact fees otherwise due to the City. 2. AMENDMENT TO SECTION 3.01(a). Subsection (a) of Section 3.01 is amended to read as follows: a. Off -Site Water Facilities to Be Constructed by the City. The City agrees to construct an off-site water transmission main consisting of a 36 -inch line segment from the City's existing 36 -inch line in FM 1460 along the south side of County Road 112 to the intersection of County Road 112 and County Road 117 and a 30 -inch line segment from the intersection of County Road 112 1 353624-10 03/15/2010 —�o — Olt --0 -- lO[ and County Road 117 along County Road 117 to Kiphen Road, as depicted on Exhibit H (Revised) (the "36 and 30 -Inch Off -Site Line"). The City will proceed with the design of, easement acquisition for and construction of the 36 and 30 -Inch Off -Site Line in accordance with Exhibit I. The City will also construct a 24 -inch water line from the termination of the 36 and 30 -Inch Off - Site Line at the intersection of County Road 112 and County Road 117 along County Road 112 to the intersection of County Road 112 and Paloma Lake Boulevard. (the "24 -Inch Water Line Segment"). The City agrees to construct the 24 -inch Water Line Segment when development within the Districts and City water service area dictate the need for the line, or as otherwise agreed by the City and the Developer. The Water Capacity Payment relating to the 24 -inch Water Line Segment, which has been calculated as described on Exhibit K, will be paid when the 24" Water Line Segment is constructed. If an easement is required for the construction of the 24 -inch Water Line Segment, the Developer will provide the City with a 20 -foot permanent waterline easement (the "20 foot Easement"), 14 feet of which will be located within the future right-of-way of County Road 112 located within the Districts' boundaries which is to be dedicated to the City (the "Right of Way") and six feet of which will be located within the 10 -foot landscape easement or landscape lot adjacent to Right of Way, and a 30 -foot temporary construction easement south of the 20 -foot Easement. The 20 -foot Easement will be in the form attached as Exhibit X, which is incorporated herein by reference. The City acknowledges that Oncor Corp. ("Oncor") currently provides electric service to the land within the Districts and has existing power poles, together with guy wires and related facilities, in place within the area to be included within the 20 -foot Easement. The Developer will reserve and may grant to Oncor a ten foot utility easement which will have as its center line the alignment of the existing power poles within the 20 -foot Easement (the "Oncor Easement") for the purpose of operating, maintaining, repairing, removing, reconstructing, upgrading and replacing its existing facilities. The Developer and/or Oncor may also grant telephone, cable television and other utility providers the right to use the Oncor Easement for overhead utility lines placed on Oncor's poles. Any electrical transformers shall be pole mounted. No surface transformer pull -boxes of any kind will be allowed within the 20 -foot easement. In addition, the Developer will have the right to make connections to County Road 112, to make utility crossings of the 20 -foot Easement at street intersections, and to make connections to utility facilities located within the 20 -foot Easement. Anything herein to the contrary notwithstanding, no further City approval of or consent to the Oncor Easement or these crossings and/or connections will be required. . 353624-10 03/15/2010 b. The City further agrees to construct an extension of the 24 -inch Water Line Segment from the intersection of County Road 112 and Paloma Lake Boulevard along County Road 112 to the intersection of County Road 112 and County Road 110 when development within the City's extraterritorial jurisdiction or the Districts dictate its construction or as otherwise mutually agreed by the City and the Developer. This extension, which will also be a 24 -inch line, is the same 24 -inch line described on Exhibit H (Revised) (the "24 -inch Water Line Extension"). The Developer will fund the unpaid portion of the Water Capacity Payment in progress payments according to the schedule contained in Section 3.08. If an easement is required for the construction of the 24 -inch Water Line Extension, the Developer will provide the City with a 20 -foot permanent waterline easement (the "20 foot Easement Extension"), 14 feet of which will be located within the Right of Way and six feet of which will be located within the 10 -foot landscape easement or landscape lot adjacent to Right of Way, and a 30 -foot temporary construction easement south of the 20 -foot Easement Extension. The 20 -foot Easement Extension will be subject to the same rights of the Developer and Oncor with respect to the Oncor Easement which are described in subsection a, above, and will also be in the form of the attached Exhibit X. 3. AMENDMENT TO SECTION 7.03. Section 7.03 of the Consent Agreement is deleted in its entirety, and the following new Section 7.03 is inserted in its place: Section 7.03 Fiscal Security for Public Improvements. If the Developer wishes to "lock in" the amount of the City's impact fees applicable to development in a newly platted subdivision section, the Developer must post fiscal with the City for all public improvements, including District water, wastewater and drainage improvements, at the time of recordation of the final plat for the subdivision. The Developer may elect not to post fiscal at the time of recordation of the final plat; however, in that case the City's impact fees applicable to development in the subdivision will be determined at the time of completion of construction of the utility infrastructure for the subdivision, as evidenced by the project engineer's certification of completion. If the City's impact fees are reduced in the future, the Developer will be entitled to pay the amount of the reduced impact fees rather than the impact fees as initially determined under this Section. 4. CREDIT FOR CERTAIN LINE A COSTS INCLUDED IN IMPACT FEE. Certain costs of Line A of the McNutt Interceptor were included in the City's wastewater impact fee, resulting in an overpayment by the Developer of $113.50 per LUE based on its cost participation in Line A under the Consent Agreement. Within 30 days of the date of this Amendment, the City agrees to refund the sum of $16,117.00 to the Developer for the 142 wastewater impact fees paid for new wastewater connections within the Districts through 353624-10 03/15/2010 September 30, 2009. Thereafter, within 30 days after the end of each future fiscal year (October 1 though September 30), the City will refund the Developer $113.50 for each additional impact fee paid for a new wastewater connection within the Districts during that fiscal year until such time as the Developer has received $113.50 for each wastewater connection within the Districts through build -out, not to exceed a maximum of $227,000 (based on 2,000 LUEs). 5. DEFINED TERMS. All terms delineated with initial capital letters in this Amendment that are defined in the Consent Agreement have the same meanings in this Amendment as in the Consent Agreement. Other terms have the meanings commonly ascribed to them. 6. EFFECT OF AMENDMENT. Except as specifically provided in this Amendment, the terms of the Consent Agreement continue to govern the rights and obligations of the parties, and all terms of the Consent Agreement remain in full force and effect. If there is any conflict or inconsistency between this Amendment and the Consent Agreement, this Amendment will control and modify the Consent Agreement. 7. EXECUTION; COUNTERPARTS. To facilitate execution, this Amendment may be executed in any number of counterparts, and it will not be necessary that the signatures of all parties be contained on any one counterpart. Additionally, for purposes of facilitating the execution of this Amendment: (a) the signature pages taken from separate, individually executed counterparts of this Amendment may be combined to form multiple fully executed counterparts; and (b) a facsimile signature will be deemed to be an original signature for all purposes. All executed counterparts of this Amendment will be deemed to be originals, but all such counterparts, when taken together, will constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned parties have executed this Amendment on the dates indicated below, to be effective on the date the last party signs. CITY O� ROD ROCK By: £JiJL )11, Name: A{41vI MS (1iY6(M/ Title: 11/1/yQY' Date: ft'•w 353624-10 03/15/2010 STATE OF TEXAS COUNTY OF WILLIAMSON This instrument was acknowledged before me this day of i , 2010, by 10641A IIYI C?(YU,a 144 of the City of Round Rock, Texas, a Texas home -rule municipality, on behalf of t e municipality. IT n SARA L. WHITE MY COMMISSION EXPIRES July 11, 2012 353624-10 03/15/2010 ce,(44/L- ,K,GAR Notary Public - State of Texas Name: �Ql i�, (... IM/111 My Commission Expires: �kt4j I(� 7.p1 PALOMA LAKE DEVELOPMENT, INC., a Texas corporation By: Date: STATE OF TEXAS COUNTY OF WILLIAMSON B ake J. Magee, ake J. Magee, President �1m/ro This instrument was acknowledged before me this Ern day of '-/ / , 2010, by Blake J. Magee, President of Paloma Lake Development, Inc., a Texas corporation, behalf of the corporation. AMY T. FREDERICK MY COMMISSION EXPIRES 46119, 2014 353624-10 03/15/2010 ary Name: My Commissi 9/492161/L - State Texas on lres: (` fry EXHIBIT "X" 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 LINE EASEMENT THE STATE OF TEXAS KNOW ALL BY THESE PRESENTS: COUNTY OF WILLIAMSON That PALOMA LAKE DEVELOPMENT, INC. ("Grantor"), for and in consideration of the sum of Ten and No/ 100 Dollars ($10.00) and other good and valuable consideration paid by the CITY OF ROUND ROCK, TEXAS, a municipal corporation situated in Williamson County, Texas with offices located at 221 East Main, Round Rock, Williamson County, Texas 78664 ("Grantee"), the receipt and sufficiency of which are hereby acknowledged, does hereby GRANT, SELL, DEDICATE and CONVEY unto Grantee a water line easement (the "Easement") under and across the following described property: The tract of land more particularly described by metes and bounds on Exhibit "A", attached hereto and incorporated herein by reference (the "Easement Tract"). TO HAVE AND TO HOLD the Easement and rights described herein unto Grantee and its successors and assigns, forever, and Grantor does hereby bind itself, and its successors and assigns, to warrant and forever defend, all and singular, the Easement and rights 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, subject to all easements, encumbrances and other matters of record or visible and apparent on the ground, including the Permitted Dedications and Improvements, as defined below. The Easement may be used for the purposes of location, placement, relocation, construction, operation, enlargement, maintenance, alteration, repair, reconstruction and removal of a water transmission line and related water line facilities. This conveyance is made and accepted subject to all easements, covenants, conditions and restrictions, if any, relating to the Easement Tract which are of record in Williamson County, Texas, to the extent that they are in effect and applicable to the Easement Tract or which are visible and apparent on the ground. The Easement and the rights and privileges herein granted will be perpetual. Except as otherwise provided herein with respect to the Permitted Dedications and Improvements (as defined below), the Easement and the rights and privileges granted herein are exclusive and Grantor covenants that it will not convey any other easement or conflicting rights 363109-3 03/11/2010 within the Easement Tract without the express written consent of Grantee, which consent will not be unreasonably withheld. The foregoing notwithstanding, Grantee acknowledges that a portion of the Easement Tract is currently being utilized by Grantor for landscaping and related improvements (the "Landscape Easement"); a portion of the Easement Tract is currently being utilized by Oncor Corp. for an overhead electric line and related improvements, including power poles and guy wires, and a portion of the Easement Tract will be dedicated by Grantor in the future as right-of-way for future improvements to County Road 112. Accordingly, this grant of the Easement by Grantor is expressly made subject to Grantor's express reservation of the following rights on behalf of Grantor, its successors and assigns (collectively, the "Permitted Dedications and Improvements"): a. the right to dedicate right-of-way for County Road 112 over a portion of the Easement Tract and the right of the recipient to make improvements within the dedicated right-of-way consistent with such dedication; b. the right to grant Oncor Corp. a ten -foot utility easement for power poles, required guy wires, and overhead or pole -mounted power lines, facilities and transformers, which easement will have as its center line the alignment of the existing power poles within the Easement (the "Oncor Easement"), and the right of Grantor and/or Oncor Corp. to grant telephone, cable television and other utility providers the right to use the Oncor Easement for overhead or pole -mounted utility lines and facilities on Oncor's poles only; c. the right to grant easements for utility crossings of the Easement Tract at street intersections only, and to make connections to utility facilities located or to be located within the Easement Tract; d. the right to make curb cuts and connections to County Road 112 in order to provide access to and from Grantor's remaining property over and across the Easement Tract; and e. the right to landscape and beautify the surface of the Landscape Easement, and to plant, alter, substitute, maintain, replace, inspect, protect and remove grasses, trees and shrubs, plants and foliage as well as fencing, signage, irrigation and lighting improvements within the Landscape Easement, and to convey the Landscape Easement to a homeowners' association or other grantee for purposes of exercise of Grantor's reserved rights with respect to of the Landscape Easement. Grantee expressly consents to the Permitted Dedications and Improvements, and no further approval by Grantee of any of such Permitted Dedications and Improvements will be required. Except as provided above with respect to the Permitted Dedications and Improvements, Grantee will have the right to review any proposed easement to determine the effect, if any, that it would have on Grantee's water line and related facilities within the Easement Tract and Grantee may require reasonable safeguards to protect the integrity of its water line and related facilities. Grantor also reserves, retains, and will continue to enjoy the right to use the surface of the Easement Tract for any and all purposes which do not materially interfere with or prevent the use by Grantee of the Easement. Grantor further grants to Grantee: 2 363109-3 03/11/2010 (a) the right to remove any stone, earth, gravel or caliche which may be excavated during the opening, construction or maintenance of any water line structure, improvement or facility, provided that the surface of the Easement Tract and any improvements which are included within the Permitted Dedications and Improvements are restored upon completion of the work as required below; (b) the right to trim, cut down and clear away trees and brush now or hereafter located on or adjacent to the Easement Tract which in the reasonable opinion of Grantee may be a hazard to any Grantor's facilities within the Easement or which otherwise interfere with Grantee's exercise of its rights hereunder. Any landscaping or other permitted improvements within the Landscape Easement which is damaged as a result of Grantee's use of the Easement must be restored upon completion of Grantee's work, as required below. All cutting and trimming within the Easement Tract must be conducted in a professional manner, using commercially reasonable means to protect the trees or shrubbery from disease or insect infestation, and all trimming and cutting will be at Grantee's sole risk. Grantee agrees to promptly remove all cuttings and trimmings from the Easement Tract, and to properly dispose of them. (c) the right to mark the location of the Easement by suitable markers set in the ground; provided that such markers are placed in fences or other locations which do not interfere with any reasonable use of the surface of the Easement Tract. (d) the right to temporarily use the property adjacent to the Easement Tract which is depicted on page _ of the attached Exhibit "A" (the "Temporary Construction Easement") as may be reasonably necessary for the initial construction and installation of a water line within the Easement. Upon Grantee's completion of the initial construction and installation of a water line within the Easement, Grantee must restore the surface of the Temporary Construction Easement and return it to the same or a condition substantially similar to the condition which existed prior to Grantee's entry onto the Temporary Construction Easement. The Temporary Construction Easement will be in effect from the first date construction begins within the Easement Tract and until the first to occur of: (a) January 1, 2016; or (b) 30 days after the initial water line within the Easement is sufficiently completed to be used for its intended purpose. As a portion of the consideration for this Easement, Grantee covenants and agrees to comply with the following, all of which will be deemed to be conditions of this grant: (a) Grantee must either cause to be replaced, or provide compensation for the replacement of, any improvements on Grantor's property which are relocated or damaged as a result of Grantee's or its contractors activities within the Easement Tract; (b) Grantee must promptly backfill any trench made by it on the Easement Tract and repair any damage it causes to the surface of the Easement Tract, any improvements included in the Permitted Dedications and Improvements, or Grantor's other property; and (c) Grantee must indemnify Grantor against any loss and damage caused by the exercise of its rights under this Easement Tract or by any wrongful or negligent act or omission of Grantee's agents or employees. 3 363109-3 03/11/2010 If any controversy, claim, or dispute arises relating to this Agreement or its breach, the prevailing party will be entitled to recover its reasonable expenses, attorneys' fees, and costs from the non -prevailing party. IN WITNESS WHEREOF, Grantor has caused this instrument to be executed this day of , 2010. THE STATE OF TEXAS COUNTY OF WILLIAMSON § § § PALOMA LAKE DEVELOPMENT, INC., a Texas corporation By: Blake J. Magee, President This instrument was acknowledged before me on this the day of , 2010, by Blake J. Magee, President of Paloma Lake Development, Inc., a Texas corporation, on behalf of the corporation. Notary Public, State of Texas 4 363109-3 03/11/2010 After recording, please return to: Sheets & Crossfield, P.C. 309 East Main Street Round Rock, Texas 78664 363109-3 03/11/2010 5 ►.�rw•wniwv.pw qw uh Many. ti • 4 A \ 014 0 • a\ /i \ ny \ ‘ V. toa\ \ EXHIBIT A :fp $� 4 k 41' •INV" 414110 ik \` \ vt'�4 r' ` 1 `\\ i \. 1—