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CM-2021-243 - 9/17/2021ELECTRONICALLY RECORDED 2021146786 Williamson County, Texas Total Pages: 9 ENCROACHMENT AGREEMENT This Encroachment Agreement, hereinafter "Agreement," is made and entered into between TDG- AEC ROUND ROCK, LLC, hereinafter "TDG-AEC," whose current address is 6116 North Central Expressway, Dallas, Texas 75206, ATMOS ENERGY CORPORATION, hereinafter "Atmos," whose current address is 1800 Three Lincoln Centre, 5430 LBJ Freeway, Dallas, Texas 75240, and the CITY OF ROUND ROCK, TEXAS, hereinafter the "City," a municipal home - rule corporation whose address is 221 E. Main Street, Round Rock, Texas 78664, and becomes effective on the date indicated below. The City and the Owner agree as follows: A. TDG-AEC is the owner of property located at 2951 Chisholm Trail Road, Round Rock, Texas 78681, described as described as Lot 2, Block A, Replat of Lot 1, Micro-Bac International Subdivision, Williamson County, Texas ("Property No. 1). B. Atmos is the owner of the adjacent property located at 3110 North Interstate Highway 35, Round Rock, Texas 78681, described as Lot 1, Block A, Replat of Lot 1, Micro- Bac International Subdivision, Williamson County, Texas ("Property No. 2). Collectively Property No. I and Property No. 2 may be referred to as the "Properties" herein, and collectively TDG-AEC and Atmos may be referred to as the "Owners" herein. C. City is the record holder of a Public Utility Easement located on Property No. 1 recorded in Document No. 8403974, Cabinet E, Slide 362 of the Official Plat Records of Williamson County, Texas ("Easement Area No. 1"). D. City is also the record holder of a Public Utility Easement located on Property No. 2 recorded in Document No. 2020107144 of the Official Public Records of Williamson County, Texas ("Easement Area No. 2"). Collectively Easement Area No. 1 and Easement Area No. 2 may be referred to as the "Easement Areas" herein. E. The Owners have requested that the City allow encroachments on or over a portion of Easement Areas, as shown in Exhibit "A," attached hereto and incorporated herein by reference for all purposes ("Encroaching Structures"), with Encroaching Structures over the Easement Areas being in the nature of a screen wall and a concrete storm swale, as set forth in Exhibit "A." F. By execution of this Agreement, the City grants its limited consent for the Owner to encroach on or over a portion of the Easement Areas strictly subject to the following conditions: (1) The Encroaching Structures may be located only as depicted on the attached Exhibit "A," and that no further encroachment or improvements of any kind in the Easement Areas shall be allowed; CM 26 1-2 i 2ft 2021146786 Page 2 of 9 (2) The existence of the Encroaching Structures shall be subject to any and all relevant requirements of the Round Rock Code of Ordinances, including but not limited to the Building Code; (3) Use, maintenance, repair and removal of the Encroaching Structures shall be solely at the risk and liability of the Owners, and not at the risk and liability of the City in any manner whatsoever; (4) Removal of the Encroaching Structures, or a portion thereof, shall cause the immediate termination of this Agreement; (5) The permission of the City in allowing the Encroaching Structures shall be strictly limited to this particular request, and shall not be construed as establishing any precedent whatsoever; (6) The parties expressly agree that the City and other public utilities have full authority in an emergency to remove the Encroaching Structures, and such removal shall be allowed without notice to the Owners and without any obligation whatsoever on the part of the City or other public utility to replace or repair any part or the whole of the Encroaching Structures; (7) In a non -emergency situation, the Owners agree to be solely responsible for removal of the Encroaching Structures to the City's satisfaction, and such removal shall be completed by the Owners within thirty (30) days of actual notice to the Owners of the City's directive to remove same. The parties expressly agree that, in the event the Owners fail to remove the Encroaching Structures to the City's satisfaction following notice, then and in that event the City may cause the Encroaching Structures to be removed at the expense of the respective Owner; (8) The parties expressly agree that the City and the other public utilities shall not be responsible for damage caused to the Encroaching Structures by the City's and the other public utilities' use or maintenance of the Easement Areas; (9) The Owners shall indemnify and hold the City and the other public utilities harmless from any and all loss, damage, penalty, liability, cost and expense, including without limitation reasonable attorney's fees, that may be incurred by, imposed upon, or asserted by reason of any suit, action, legal proceeding, claim, demand, regulatory proceeding, or litigation arising from any act done or omitted to be done by any party, excepting only any loss, damage, penalty, liability, cost or expenses resulting from negligence or willful misconduct of the City or public utilities. Nothing herein shall be deemed to limit the rights (including 2 2021146786 Page 3 of 9 but not limited to the right to seek contribution) of the City, the other public utilities, or the Owners against any third party who may be liable for an indemnified claim. The parties agree that in no event shall the City or the other public utilities be liable to the Owners for any incidental, indirect, special, punitive, consequential or similar damages of any kind including without limitation loss of profits, loss of business or interruptions of business, whether such liabilities are predicated on contract, tort, strict liability or any other legal theory. This indemnification shall apply to the Owners, and to each of its successors, assigns, officers, employees and officials. The parties agree that the provisions of this section shall survive the termination of this agreement; (10) Relative to any subsequent purchaser of the Properties and/or the Encroaching Structures, the Owners expressly agree to adequately inform any such purchaser of the existence of this Agreement and provide a copy of same; and ( 11) The City reserves the option to rescind this Agreement at any time, with or without cause, by giving the Owners ten (10) days written notice of its exercise of said option. By execution below by TDG-AEC Round Rock, LLC and Atmos Energy Corporation, and the respective appropriate authorities of the City of Round Rock, Texas, the signatories bind the entities to obey all conditions of this Agreement. [Signatures and Acknowledgements on the following pages.] 3 2021146786 Page 4 of 9 TDG-AEy.ROUND ROCK. L By: t �iG�y� T�vrco t ��rG' Date Signed: ACKNOWLEDGMENT THE STATE OF 1WA ; COUNTY OF DALLAS This instrument was acknowledged before me on this 21 day of NXIVST , 2021, by V-AC� TLAK(V% (Name), as MANA!@-M (Title) of TIDG- AEC ROUND ROCK, LLC, a Texas limited liability company, whose name is subscribed to the preceding instrument, and acknowledged to me that he executed it for the purposes and consideration expressed in it. I I SUr N1wry Public Notary Public in an for the State of STATE OF TEXAS 100131145M Carom. Em. May 05. IM Page 5of9 ATMOS ENERGY CORPORATION BY _ &U-Z-c Date Signed: / — U ACKNOWLEDGMENT THE STATE OF TtO A S COUNTY OF DALL4 T This instrument was acknowledged before me on this d4y of SEPTEN 2021, by =12 (Name), asQiRECM OF FAiCllt'f1ES (Title) ofATM05 ENERGY CORPORATION, whose name is subscribed to the preceding instrument, and acknowledged to me that he executed it for the purposes and consideration expressed in it. **+�SUSAN WIIKMI g•, •:�� Notary PublIc -- _ ..__. e� ?A No Public in and for the State of •�.-� STATE OF TEXAS �Y --.-. IN 131146035 My Comm Exp. May, 05. 2M 2021146786 page 6 of 9 CITY OF ROUND ROCK, 'EXAS By: Laurie Hadley, City'Manager Date Signed:����Z1 ACKNOWLEDGMENT THE STATE OF TEXAS COUNTY OF WILLIAMSON This instrument was acknowledged before me on this 09day of , 2021, by Laurie Hadley, Round Rock City Manager, in the capacity and for the purposes and consideration therein indicated. atitie�triirrrr ,\8NaN%nUEAp4 ��*,,�� Notary Public in bid for the State of Texas 0AY Ply C' • So 13* 2021146786 Page 7 of 9 01, : 1€ni, i +_'I I �t�. k ATMOS 8 00 I FFE , r 1k I hl N •' 1r � � r� v� VOL IN �? LIMITS OF ENCROACHMENT u i { c, a` , .38U 0 25' 50' 100' 5 C,1 1,fg• qy ` + ate•_ 8,17• i r.�, LIMITS OF ENCROACHMENT ARE r `. r fVRE it 1 LIMITS OF ENCROACHMENT ' * _.. — oil' t l SCREEN WALL & UTILITY ENCROACI EXHIBIT MULTERS M ORANDUM 2021-08-03 n this pkec as not dearly legible for sat actorydation ROUND ROCK INDUSTRIAL. 2021146786 Page 8 of 9 r I' WGI. W61nccom 14 1 I 0 25' 50' 100' :j W son U, c �l e � li L SCREEN WALL & UTILITY ENCROACMMUR$ 2021-08-03 clearly legible for ROUND ROCK INDUSTRIAL EXHIBIT DRANDUM this D& was not 2021146786 Page 9 of 9 ELECTRONICALLY RECORDED OFFICIAL PUBLIC RECORDS 2021146786 Pages- 9 Fee $61.00 0912712021 01.27 PM JDISHER Nancy E. Rister, County Clerk Williamson County,Texas City of Round Rock IOUND ROCK exAs Agenda Item Summary Agenda Number: Title: Consider executing an Encroachment Agreement with TDG-AEC Round Rock, LLC for encroachment into a portion of two (2) Public Utility Easements recorded in Document No. 8403974, Cabinet E, Slide 362 and Document No. 2020107144 of the Official Public Records of Williamson County. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 9/17/2021 Dept Director: Brad Wiseman, Director of Planning and Development Services Cost: $0.00 Indexes: Attachments: ENCR2108-0001 PUE Atmos RR - 210902 Executed Doc Department: Planning & Development Services Text of Legislative File CM-2022-243 This agreement allows for the placement of a private perimeter fence and private storm drain infrastructure in a public utility easement (PUE) and establishes responsibility for any maintenance and repair of this private infrastructure to be that of the property owner, not the City or any other easement rightsholder. The City's Utilities Director and franchise utility owners are agreeable to the encroachment. City of Round Rock Page 2 of 1