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CM-07-09-20911111111111111111111111111111111 1111 111111111111111111111 :G:Gs 2@@7@8315@ ENCROACHMENT AGREEMENT "ROUND ROCK, TEXAS PURPOSE P�SSIOrI PROSPERITY This Encroachment Agreement, hereinafter "Agreement," is made and entered into between Gary and Cindy Rose, hereinafter referred to as the "Owners," whose address is 2 Shaded Way, Round Rock, Texas 78664, and the City of Round Rock, Texas, hereinafter the "City," a municipal home -rule corporation whose address is 221 East Main Street, Round Rock, Texas 78664, and becomes effective on the date this document is signed by the City Manager of the City of Round Rock. The City and the Owner agree as follows: A. City is the record holder of the Public Utility Easement, hereinafter the "Easement," described in Exhibit A attached hereto and made a part hereof for all appropriate purposes. B. The Owners are the record owners of certain property described in Exhibit B attached hereto and made a part hereof for all appropriate purposes. C. The Owners have requested that City allow an encroachment on or over a portion of such easement, with the encroachment being in the nature of swimming pool which is shown in Exhibit C attached hereto and made a part hereof for all appropriate purposes. D. By execution of this Agreement, the City grants its limited consent for the Owners to encroach on or over a portion of the easement strictly subject to the following conditions: (1) The encroaching structure may be located only as depicted on the attached Exhibit C, and that no further encroachment or improvements of any kind in the easement belonging to the City shall be allowed; (2) The existence of the encroaching structure shall be subject to any and all relevant requirements of the Round Rock Code of Ordinances, including but not limited to the Building Code; Use, maintenance, repair and removal of the encroaching structure 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) The permission of the City in allowing such encroachment shall be strictly limited to this particular request, and shall not ever be construed as establishing any precedent whatsoever; (3) (5) 00121763/ps The parties expressly agree that the City has full authority in an emergency to remove or permit to be removed, in whole or part, the CA4.07-o)--,20? encroaching structure, and such removal shall be allowed without notice to the Owners and without any obligation whatsoever on the part of the City to replace or repair any part or the whole of the encroaching structure; (6) In a non -emergency situation, the Owners agree to be solely responsible for removal of the encroaching structure to the City's satisfaction, and such removal shall be completed by the Owners within forty-eight (48) hours 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 structure to the City's satisfaction following notice, then and in that event the City may cause the encroaching structure to be removed at the expense of the Owners; The parties expressly agree that the City shall never be responsible in any manner whatsoever for damage caused to the encroaching structure related to the City's operation or maintenance of the utilities contained within the Easement; (7) (8) The Owners shall indemnify and hold the City 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. Nothing herein shall be deemed to limit the rights (including but not limited to the right to seek contribution) of the City 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 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; and (9) Relative to any subsequent purchaser of the encroaching structure, the Owners expressly agree to adequately inform any such purchaser of the property as to the existence of this Agreement and provide a copy of same. (10) The City reserves the right to rescind this Agreement at any time, with or without cause. By execution below by the Owners and the respective appropriate authorities of the City of Round Rock, Texas, the signatories bind the entities to obey all conditions of this LOA. The Owners By: Gary Rose Date Signed: By: Cindy Ro (RA-idit—/ Date Signed: 1 oZ 4- D f Round Rock, Texas es R. Nuse, P.E., City Manager Date Signed: 0'Vol- S / 0 7 AT.F ST: City Secretary, City of Round Rock J AP : R ) VED S TU FORM: 414At. City • ttorney, City of Round Rock ACKNOWLEDGMENT THE STATE OF TEXAS COUNTY OF WILLIAMSON This instrument was acknowledged before me on this a day of SPkm be Y' , 2007, by Gary Rose, whose name is subscribed to the preceding instrument, and acknowledged to me that he executed it for the purposes and consideration expressed in it. "" -., DIANE V. WILLOUGHBY Notary Public, State of Texas i *= My Commission Expires 'of '''`' Aug. 17, 2011 THE STATE OF TEXAS COUNTY OF WILLIAMSON • Notary Public in and for the S too xas ACKNOWLEDGMENT This instrument was acknowledged before me on this o41. y day of 5tp4.m 6t4, , 2007, by Cindy Rose, whose name is subscribed to the preceding instrument, and acknowledged to me that she executed it for the purposes and consideration expressed in it. 4;•F''DIANE V. WILLOUGHBY Notary Public, State of Texas My Commission Expires "<,'o ' Aug. 17, 2011 THE STATE OF TEXAS • N Public in andel for the Sta of Teiiis V ACKNOWLEDGMENT COUNTY OF WILLIAMSON 4 This instrument was acknowledged before me on this 2 day of--itpttn , 2007, by JAMES R. NUSE, P.E., CITY MANAGER of the City of Round Rock, in the capacity and for the purposes and consideration therein indicated. Noublic in and for the State of Texas 1 VIRGINIA M. MORENO MY COMMISSION EXPIRES January 11, 2008 Exhibit A Description of a 10 -foot Public Utility Easement Lot 6 Block D, Oak Bluff Estates Phase 2 2 Shaded Way, Round Rock, Texas A 10 -foot Public Utility Easement, abutting the southwest line of Lot 66, in Block D of Oak Bluff Estates Phase 2, A Subdivision in Williamson County, Texas according to the Map or Plat thereof recorded in Cabinet F, Slide 253 of the Plat Records of Williamson County, Texas, said lot also being known as 2 Shaded Way, in Round Rock, Texas, and said easement granted or otherwise retained pursuant to said plat. Sketch to Accompany Description of 10 -foot Public Utility Easement Lot 66, Block D, Oak Bluffs Estates Phase 2 2 Shaded Way, Round Rock, Texas Subject Lot Location of Easement Exhibit B Legal Description of Property Lot 66, in Block D of Oak Bluff Estates Phase 2, A Subdivision in Williamson County, Texas according to the Map or Plat thereof recorded in Cabinet F, Slide 253 of the Plat Records of Williamson County, Texas. EXHIBIT no NI I t Iliuiltd `• . 3 All or parts of the text on this page was nF clearly legible for satisfactory recordatio: 09/07/2007 17:09 FAX 5123298650 JAYMES WILLOUGHBY TEAM 004 ENCROACTIMEN1' AGREEMENT Whereas Southwestern Rett Telephone Company, using or entitled to use, under the terms and provisions of our respective franchises with the property owners of Oak Bluff Estates, Round Rock, Texas, a subdivision in the County of. Williamson, State of Texas, restrictions of record in Cabinet F, Slides 253-259, Property Records, Williamson County, Texas, and said record reflects a 10 foot PUDE and Drainage Easement on the Southwest property line of Lot 66, Block. D, of said subdivision, of record in Document 2004059389, Property Records, Williamson County, Texas, of said subdivision, that portion of this easement, do hereby consent to the encroachment upon said easement, with the requirement that the owner move structure, at owner's expense, to clear said easement should access to facilities become necessary: The address locally known as: 2 Shaded Way The request is for: Gregg Miller 3400 E. Palm Valley Blvd. Round Rock Texas 78664 SOUTHWESTERN BELL TELEPHONE, L.P. , a Texas limited partnership, d\b\a AT&T Texas By: SBC TEXAS, i..L.C., a Delaware limited liability company, its general partner By: Name: 'OSS ornrr Title: Manager Engineering Design STATE OF TEXAS § COUNTY OF TRAVIS before me on �L7 a September, 2007 by Ross This instrument was acknowledged Carter, Manager, Engineering/Design, SBC, a Delaware limited liability company, as general partner of SOUTHWESTERN BELL TELEPHONE, L.P., a Texas limited partnership, d\b\a AT&T Texas, on behalf of said limited partnership. Notary Public by and for The State of Texas My commission expires 1 D -.P-7 • v9 DATE: September 21, 2007 SUBJECT: City Manager Approval at the September 28, 2007 staff meeting ITEM: Approval of an Encroachment Agreement regarding a 10 -ft public utility easement along the southwest lot line of Lot 66, Block D, Oak Bluff Estates Phase 2 Subdivision, a subdivision of record in Cabinet F Slide 253 of the Plat Records of Williamson County, Texas, also known as 2 Shaded Way. Department: Planning and Community Development Staff Person: Jim Stendebach, Director of Planning and Community Development Lee Heckman, Senior Planner Justification: At the time this plat was approved by Williamson County, were dedicated along all lot lines, including shared rear orbside lic tlot yl nes.ments The previous owner of this property inadvertently encroached into this public utility easement with the installation of a swimming pool. Typically, if the easement is unused by local utility providers, the easement, or a portion of it, may be released. In this instance, the local telephone company installed some facilities in the easement that is encroached upon by the swimming pool; thus, that utility provider issued an encroachment agreement rather than a release. Consequently, the City cannot release the easement and must also establish an encroachment agreement. This agreement will be recorded in the Official Public Records of Williamson County. Funding: Cost: None Source of Funds: N/A Background Information: The attached agreement document, which has been executed by the property owners, was prepared in the office of our City Attorney.