CM-08-09-237CONSENT TO USE OF EASEMENT
THE STATE OF TEXAS
§ KNOW ALL MEN BY THESE PRESENTS
COUNTY OF WILLIAMSON
WHEREAS, Paloma Lake Development, Inc. (the "Owner") previously granted the City
of Round Rock, Texas (the "City") the wastewater line easement recorded under Document No.
2007099707, Official Public Records of Williamson County, Texas (the "City Easement"), over
certain real property in Williamson County, Texas (the "City Easement Tract"); and
WHEREAS, the City Easement provides that the Owner will not convey any other
easement within the City Easement Tract without the express written consent of the City; and
WHEREAS, the Owner has requested that the City consent to the grant of an easement
over a portion of the City Easement Tract to Southwestern Bell Telephone, L.P., a Texas limited
partnership d/b/a AT&T Texas ("AT&T') for the construction, installation, operation,
maintenance, repair and replacement of a single conduit, not to exceed six inches in diameter
(the "Conduit"), together with fiber optic cables placed within the Conduit (the "Cable"), and the
City is willing to grant such consent on the terms of this instrument (the "Consent");
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the City, AT&T and the Owner (individually, a "Party" and
collectively, the "Parties") agree as follows:
1. Subject to the terms of this Consent, the City consents to the Owner's grant to
AT&T of (a) a permanent, subsurface easement over the portion of the City Easement Tract,
which is more fully described on Exhibit A, attached hereto and incorporated herein by
reference, for the limited purpose of construction, installation, operation, maintenance,
inspection, repair and replacement of the Conduit and Cable, and (b) a temporary working space
easement over the City Easement Tract during the initial construction and installation of the
Conduit and Cable (the "Fiber Optic Crossing Easement"). A copy of this Consent must be
attached to and incorporated into the Fiber Optic Crossing Easement. AT&T expressly accepts
and agrees to comply with all provisions of this Consent. This Consent is granted by the City
without representation or warranty, express or implied, and accepted by the Owner and AT&T
on that basis.
2. The Fiber Optic Crossing Easement will require that the Conduit and Cable be
located in the center of the Fiber Optic Crossing Easement, plus or minus one foot, and shall
have no less than two feet and no more than two and one-half feet of cover from the surface of
the City Easement Tract to the top of the Conduit, unless otherwise approved by the City in
writing (the "Assignment").
3. Prior to AT&T's commencement of construction of the Conduit and Cable within
the City Easement Tract, AT&T must (a) provide a set of the plans for such work to the City for
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review and approval and (b) have a Licensed Surveyor mark the location of the Fiber Optic
Crossing Easement and for the Conduit on the surface of the City Easement Tract to enable the
City to confirm that the location is consistent with the Assignment. The required plans must
show the location of the Conduit relative to property lines and other easements in the vicinity of
the City Easement, the size of the Conduit, the amount of the cover, and other detailed
information demonstrating that the Conduit will be no closer than one foot to any existing
underground lines or utilities, and must specifically detail any areas where the Conduit will cross
existing utilities. The installation must include a tracer wire placed above the Conduit. If the
location of the Conduit as constructed varies from the Assignment, AT&T must relocate the
Conduit to be consistent with the Assignment at its sole expense within 30 days of receipt of
written notice from the City. Upon completion of the construction and installation of the
Conduit and Cable, AT&T must provide a copy of the record drawings for the Conduit to the
City.
4. If, in the future, the City reasonably determines that the Conduit and Cable must
be relocated from the City Easement Tract, AT&T will be required to relocate the Conduit and
Cable at its expense within 120 days of receipt of written notice from the City. In addition, if, in
the future, the City determines that excavation within the City Easement Tract is necessary and
that its excavation may place the Conduit and Cable in peril, the City will contact AT&T for a
determination of whether or not the Conduit and Cable requires temporary support. Such
determination shall be made in writing to the City within 48 hours of request. If AT&T
determines that the Conduit and Cable should be supported to avoid damage during the City's
work, AT&T must, at its sole expense, determine the means of such support and install and/or
provide such support for its Conduit and Cable within 24 hours of notification from the City.
Such support shall be coordinated with the City and implemented in a manner that does not
preclude the City from its ability to perform its, required work and shall be provided by AT&T
until no longer needed. If AT&T determines that such support is not viable, then AT&T, at its
sole expense, shall either (i) within 30 days notification by the City, relocate its Conduit and
Cable to another portion of the City Easement Tract as approved by the City and shall
subsequently restore its Conduit and Cable to the Assignment upon completion of the City work,
or, (ii) within 120 days of notification by the City, permanently relocate the Conduit and Cable
from the City Easement Tract. In case of emergency related to the City's or AT&T's facilities
within the City Easement Tract, the City and AT&T agree to provide reasonable assistance to
promote the welfare of the public.
5. Upon AT&T's completion of the initial construction and installation of the
Conduit and Cable or any subsequent activity which disturbs the surface of the City Easement
Tract, AT&T must restore the surface of the City Easement Tract to a condition which is equal to
or better than the condition which existed prior to AT&T's initiation of construction. If AT&T
or its agents, representatives, employees, contractors or subcontractors damage the City's
wastewater facilities located within the City Easement Tract, AT&T must immediately notify the
City and must also repair any damage to the City's wastewater facilities at its sole cost. AT&T
will be solely responsible for any costs, expense, liability or loss, including any damage to the
City's wastewater facilities, occasioned by or arising from AT&T's activities within the City
Easement Tract and/or from the construction, installation, operation, maintenance, inspection,
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335152-3 09/03/2008
repair, reconstruction and rebuilding of the Conduit and Cable (collectively, the "Losses"), and
will indemnify and hold the City harmless from and against any such Losses. AT&T will also
indemnify and hold the City harmless from and against any costs, expenses, liability or loss
occasioned by or arising from the City's activities within the City Easement Tract that do not
involve excavation of the ground surface and that damage the Conduit or Cable. Furthermore,
AT&T will indemnify and hold the City harmless from and against any costs, expenses, liability
or loss occasioned by or arising from the City's activities within the City Easement Tract
involving excavation that damages the Conduit or Cable and for which AT&T had prior
knowledge, save and except unreasonable action by the City.
6. AT&T will not be permitted to install fencing or other obstructions on the surface
of the Fiber Optic Crossing Easement or the City Easement Tract, save and except temporary
items necessary to protect the public during construction may be erected subject to the approval
of the City. AT&T will not be permitted to change the elevation of the surface of the Fiber Optic
Crossing Easement or the City Easement Tract without the express written consent of the City.
7. The City retains all rights to the City Easement except where those rights would
materially interfere with AT&T's exercise of the rights to be granted by Owner pursuant to the
Fiber Optic Crossing Easement, which rights will be subject to AT&T's compliance with the
terms of this Consent.
8. This Consent contains the entire agreement of the Parties regarding the Fiber
Optic Crossing Easement. This Consent can be amended only by written agreement signed by
the City, AT&T and the Owner. If there is any conflict between this Consent and the terms of
the City Easement, the terms of this Consent will control.
9. The terms of this Consent will be covenants running with the Fiber Optic
Crossing Easement and will inure to the benefit of and be binding upon the Parties, and their
respective successors and assigns.
10. Any notice or other communication ("Notice") given under this Consent must be
in writing. Notice may be given by depositing the Notice in the United States Mail, postage
paid, certified, and addressed to the Party to be notified with return receipt requested; or (ii) by
delivering the Notice to the Party, or an agent of the Party, to be notified. Notice deposited in the
mail in the manner specified will be effective three days after deposit. Notice given in any other
manner will be effective only if and when received by the Party to be notified. For the purposes
of notice, the addresses of the Parties will, until changed as provided below, be as follows:
City:
335152-3 09/03/2008
City of Round Rock, Texas
Attn: Jim Nuse, City Manager
221 East Main Street
Round Rock, Texas
Telephone: (512) 218-5410
Facsimile: (512) 218-7097
Email: jnuse@round-rock.tx.us
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with copy to:
with copy to:
Owner:
with copy to:
AT&T:
City of Round Rock, Texas
Attn: Danny Halden, P.E., City Engineer
2008 Enterprise Dr.
Round Rock, Texas 78664
Telephone: (512) 218-5555
Facsimile: (512) 218-5563
Email: dhalden@round-rock.tx.us
Steve Sheets
Sheets & Crossfield
309 E. Main Street
Round Rock, Texas 78664-5264
Telephone: (512) 255-8877
Facsimile: (512) 255-8986
Email: slsheets@sheets-crossfield.com
Paloma Lake Development, Inc.
Attn: Blake Magee
1011 North Lamar Boulevard
Austin, Texas 78703
Telephone: (512) 481-0303
Facsimile: (512) 481-0333
Email: blake@blakemageeco.com
Sue Brooks Littlefield
Armbrust & Brown, L.L.P.
100 Congress Ave., Ste. 1300
Austin, Texas 78701
Telephone: (512) 435-2307
Facsimile: (512) 435-2360
Email: slittlefield@abaustin.com
Southwestern Bell Telephone, L.P.
d/b/a AT&T Texas
Attention: Richard R. Raley, Manager—Engineering Design
712 E. Huntland
Austin, Texas 78752
Telephone: (512) 870-4798
Facsimile: (512) 870-4711
A Party may change its address for purposes of notice by giving at least five days written
notice of the new address to the other Party.
11. If any provision of this Consent is illegal, invalid, or unenforceable under present
or future laws, it is the intention of the Parties that the remainder of this Consent not be affected,
and that, in lieu of each provision of this Consent that is illegal, invalid, or unenforceable, there
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335152-3 09/03/2008
be added as a part of this Consent a provision as similar in terms to the illegal, invalid, or
unenforceable provision as is possible and is legal, valid, and enforceable.
12. If AT&T defaults in the performance of its obligations under this Consent, the
City will be entitled to pursue all remedies available at law or in equity. In the event of any
lawsuit based on this Consent, the prevailing Party will be entitled to recover its reasonable
attorney's fees and related costs.
13. Any failure by a Party to insist, or election by a Party not to insist, upon strict
performance by another Party of any of the terms, provisions, or conditions of this Consent will
not be deemed to be a waiver thereof or of any other term, provision, or condition hereof, and a
Party will have the right at any time thereafter to insist upon strict performance of any and all of
the terms, provisions, and conditions of this Consent.
14. The construction and validity of this Consent will be govemed by the laws of the
State of Texas. Venue will be in a court of appropriate jurisdiction in Williamson County,
Texas.
15. This Consent may be executed simultaneously in two or more counterparts, each
of which will be deemed an original, but all of which will constitute one and the same
instrument. Signature by facsimile will be deemed to have the same effect as an original.
16. Each Party represents and warrants that it has the full right, power and authority
to execute this Consent. Each person executing this instrument on behalf of a Party represents
that he or she is an authorized representative of and has the full authority to sign this document
on behalf of that Party.
EXECUTED this day of 2008.
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335152-3 09/03/2008
CITY:
CITY OF ROUND, ROCK
Bv•
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
mes R. Nuse, City Manager
This instrument was acknowledged before me on the'll0 day of
2008, by Jim R. Nuse, City Manager of the City of Round Rock, Texas, a home rule
municipality, on behalf of said city.
(seal)
SARA L. WHITE
k MY COMMISSION EXPIRES
--Aar July 11, 2012
335152-3 09/03/2008
Notary Public, State of Texas
6
OWNER:
PALOMA LAKE DEVELOPMENT, INC., a
Texas corporation
B
THE STATE OF TEXAS
COUNTY OF TRAVIS
Blake J. Magee, President
el
1�'This instrument was acknowledged before me on theday of imp"
2008, by Blake J. Magee, President of Paloma Lake Development, Inc., a Texds corporation, on
behalf of said corporation.
(seal)
i
AMY TAPP FREDERICK
Notary Public, State of Texas
,4�r My Commission Expires
''';�;;,;,',`.� April 19, 2010
335152-3 09/03/2008
1
7
blic, State of Texas
AT&T:
SOUT . WESTERN BELL TELEPHONE, L.P.,
a Tex . s li ited partnership, d/b/a AT&T Texas
By:
THE STATE OF TEXAS §
COUNTY OF W §
Its:
4
Thi instrument was acknowledged before me on the 1 day of d ,
2008, by of Southwestern Bell Telephone, L.P., a Texas
limited partnership, n behalf of said partnership.
`> `: NORMA CHALMERS
R: _U,, :* NOTARY PUBLIC
s'• '��� %, : State of Texas
Corm Exp. 10-27-2009
335152-3 09/03/2008
Notary Public, State of Texas
8
AFTER RECORDING, RETURN TO:
Sue Brooks Littlefield
Armbrust & Brown, L.L.P.
100 Congress Ave., Ste. 1300
Austin, Texas 78701
335152-3 09/03/2008
PO/NT OF
COMMENCEMENT
28 N
/ \
/ N \. PALOMA LAKE DEVELOPMENT, INC
/ \ \.. 151.52 ACRES
/ \ N `ssp, N. DOCUMENT No. 2005076981
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PALOMA LAKE SECTION 2 \ \ CITY OF ROUND ROCK FOR
CABINET DD, SLIDES 170 & 171 \ \ WASTEWATER LINE
\\ \ DOC NO. 2007099707
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/ `N SKETCH TO ACCOMPANY DESCRIPTION
(SEE DESCRIPTION ON A SEPARATE ATTACHMENT)
E LEGEND:
co SEPT. 16, 2008 SCALE. 1" = 40'
F') ° = IRON ROD SET (1/2" N?TH RJ SURVEY/NG CAP)
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J
RJ SURVEYING & ASSOCIATES, INC.
1212 E. BRAKER LANE, AUSTIN, TEXAS 78753
(512) 836-4793 FAX: (512) 836-4817
Exhibit A
Page 1 of 2
154 square feet
A PARCEL OF LAND IN WILLIAMSON COUNTY, TEXAS, BEING A PART OF THE WILLIS
DONAHO SURVEY, ABSTRACT No. 173; A PART OF THAT 151.52 ACRE TRACT OF LAND
CONVEYED TO PALOMA LAKE DEVELOPMENT, INC., BY DEED RECORDED IN
DOCUMENT No. 2005076981 OF THE OFFICIAL PUBLIC RECORDS OF WILLIAMSON
COUNTY, TEXAS; AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE at a 1/2" iron rod set in the South Line of that easement 30 feet wide granted to
the City of Round Rock, Texas, by deed recorded in Document No. 2007099707 of the Official
Public Records of Williamson County, Texas, at the North Corner of Lot 16, Block E, Paloma
Lake Section 2, according to the plat thereof recorded in Cabinet DD, Slides 170 and 171 of the
Plat Records of Williamson County, Texas;
THENCE S.50°02'55"E., along the South Line of the said Easement and the Northeasterly Line
of said Lot 16, a distance of 145.64 feet to a 1/2" iron rod set at the East Corner of Lot 16;
THENCE continue along the South Line of the said Easement the following two courses:
1. S.25°33'10"E. a distance of 119.06 feet;
2. N.88°53'50"E. a distance of 29.29 feet to the Point of Beginning;
THENCE N.14°37'05'W., across said easement, a distance of 30.85 feet to the North Line
thereof;
THENCE N.88°53'50"E., along the Northerly Line of the said Easement, a distance of 5.14 feet;
THENCE S.14°37'05"E., across said easement, a distance of 30.85 feet to the South Line
thereof;
THENCE S.88°53'50"W., along said South Line, a distance of 5.14 feet to the said Point of
Beginning.
Containing 154 square feet, more or less.
h*? ../ 1,/elt /¢ 21"B
. Kenneth Weigand
Registered Professional Land Surveyor No. 5741
State of Texas
RJ Surveying & Associates, Inc.
1212 East Braker Lane
Austin, Texas 78753
S: \LAND 1300-1349\ 1338\ 1338 -ATT -C ROSS I NG . rtf
Exhibit A
Page 2 of 2
DATE: September 22, 2008
SUBJECT: City Manager - September 26, 2008
ITEM: Consider execuiting consent to use of easement to
Southwestern Bell Telephone, L.P. d/b/a AT&T Texas
Department: Engineering & Development Services
Staff Person: Danny Halden, P.E., City Engineer
Justification:
To consent to the Owner's (Paloma Lake Development) grant to AT&T of a
permanent, subsurface easement over a portion of an existing City Easement.
Funding:
Cost: N/A
Source of funds: N/A
Outside Resources: Paloma Lake Development
Background Information:
Paloma Lake Development, Inc. (the `Owner") previously granted the City a
wastewater line easement on its property. This City Easement provides that the
Owner will not convey any other easement within the City Easement without the
express written consent of the City. The owner has requested that the City consent
to the grant of an easement over a portion of the City Easement to AT&T for a fiber
optic crossing.
Public Comment: N/A
Blue Sheet Format
Updated 02/2007