Can you give me a contact at AT&T? I will call them and see if we can get somewhere on this. Carmen Moran Director of Development Services Town of Addison P.O. Box 9010 Addison, TX 75001 Ph: 972-450-2886 Fax: 972-450-2837 Email: cmoran@addisontx.gov -----Original Message----- From: Ext_mail John Hill Sent: Monday, December 28, 2009 1:40 PM To: Carmen Moran Subject: RE: AT&T easement agreement Carmen, attached are the following for review: 1. Red-line of the easement sent to you last Wednesday, Dec. 23; only change is addition of reference to land contiguous to the easement properties for access by SW Bell (see second page); 2. Clean copy of the form of easement; 3. DeltaView comparison of the clean copy of the easement and the last version of the easement that was received from SW Bell on October 22. Please let me know if you have any questions/comments. John ________________________________ From: Carmen Moran [mailto:cmoran@addisontx.gov] Sent: Monday, December 28, 2009 1:07 PM To: Hill, John Subject: RE: AT&T easement agreement John, I went over the red-lined version with Clay. He said that on page 2, we had struck all references to above-ground equipment, and they will have a cabinet that is above ground. Also, on page 2, we did not allow them access across our property, which would mean they would have to access from the creek. He also said we have gone round-and-round with them over the indemnity clause, but we don’t know if that can be modified. Have you had conversations with them about the two issues I mentioned on Page 2? Carmen Moran Director of Development Services Town of Addison P.O. Box 9010 Addison, TX 75001 Ph: 972-450-2886 Fax: 972-450-2837 Email: cmoran@addisontx.gov -----Original Message----- From: Ext_mail John Hill Sent: Wednesday, December 23, 2009 11:40 AM To: Carmen Moran Subject: RE: AT&T easement agreement ***************************************************************************** IMPORTANT/CONFIDENTIAL: This message contains information from the law firm of Cowles & Thompson, P.C. which may be privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient or the employee, or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately at our telephone number (214) 672-2000 ****************************************************************************** Carmen, the first attachment is a comparison document between the most recent version of the easement received (on October 22) from AT&T and the document (with a couple of additional modifications) that I forwarded to Clay on October 22 (after receiving the AT&T version). The second attachment is a clean copy of the easement. Regarding the two comments in your e-mail: 1. The easement is perpetual and does not have an expiration date (see third full paragraph on page 2). 2. The easement is non-exclusive as to Underground Easement Property, but exclusive as to the Equipment Station Easement Property. That is language that Southwestern Bell proposed. Additional notes: 1. In the first full paragraph on page 2, at SWB’s request, a the highlighted provision regarding electric power was added: Subject to the terms and conditions of this Private Easement, the grant of the Easement includes the (i) the right of ingress and egress to and from the Easement by reasonable routes across the property of Grantor immediately contiguous to the Underground Easement Property and the Above Ground Easement Property (collectively, the “Property”) as determined by Grantor from time to time (but Grantee must promptly restore such property of Grantor to its previous condition if damaged, modified, or changed by such use), (ii) the right to construct, operate and maintain, or license others to do so, underground service lines for electric power, and (2) the right to clear and trim trees, overhanging branches, roots, brush and other obstructions in the Property to the extent the same interfere with the purpose for which the Easement is granted. Grantee shall repair and replace at Grantee’s expense, all paving, curbing, fencing, walls, shrubbery, trees, landscaping, and other improvements located on the Property and any property adjacent thereto to the extent that any of the same is damaged by Grantee’s use and enjoyment of the Property. The comment from SWB was that they “will need to power the equipment.” I had previously asked Clay if this language was acceptable, but had not heard back. 2. A prior draft that we prepared included a provision that the City had the right to dedicate, construct, etc. roads, streets, sidewalks, etc. and electric, gas, water, sewer lines, etc. through the easement property so long as that did not interfere with SWB’s use of the easement. SWB objected to this, but that language is again included in the attached. 3. We had previously included a provision that the City had the right to require that SWB relocate its facilities, at SWB’s cost and expense, if the City needed to use the easement area for water, sewer, drainage, public right-of-way, etc. purposes. SWB objected to that provision, and it is not included in the attached. The provision read: Grantee agrees that any Facilities placed upon, across, over, above, under or within the Property may be required by Grantor to be relocated at Grantee’s sole cost and expense in the event the Property is needed by Grantor, including, without limitation, for placement of water, sanitary sewer or drainage facilities, or for revisions to and/or construction of driveways or public rights-of-way on the Property, as reasonably determined by the Grantor’s City Manager, but with no less than 120 days prior written notice to Grantee; provided, however, that prior to invoking its rights under this paragraph, Grantor agrees to consider, in good faith, as solely determined by Grantor, any alternative designs suggested by Grantee for the construction project which have the same functionality and utility to Grantor, as solely determined by Grantor, and which do not increase Grantor’s costs (net of any such costs which Grantee agrees to pay), as solely determined by Grantor. Grantee will be responsible for any such relocation of its Facilities, including the placement and splicing of any necessary cables or lines, and the removal of any abandoned Facilities. Grantee agrees such relocation of Grantee’s Facilities will be at its sole cost and expense (and without seeking reimbursement or repayment for such cost and expense from any entity or person). In the event of such relocation, Grantor agrees to use its best efforts acting in good faith to make available to Grantee a comparable easement for use by the Grantee. In the event the Facilities are required by Grantor to be relocated pursuant to this paragraph, this Private Easement shall terminate upon such relocation. Absent this language, if in the future it becomes necessary for the City to require that SWB move its facilities, the City may be responsible for relocation costs. This language was not one of the two items objected to by SWB as reflected in your notes; accordingly, if you would like to add it back in and resubmit it to SWB, please let me know. 4. We had previously included a provision that SWB’s use of the easement would not interfere with the City’s use of the easement property for open space or park purposes and related purposes and future development plans. That was objected to by SWB, and is not included in the attached. Hope you and your family have a great Christmas. John ________________________________ From: Carmen Moran [mailto:cmoran@addisontx.gov] Sent: Tuesday, December 22, 2009 5:24 PM To: John Hill Subject: AT&T easement agreement According to Clay and Nancy, the AT&T people won’t sign the agreement we presented because: 1. It has an expiration date on their easement. Aside from Airport Property, we are not aware of easements having expiration dates, and we would be fine with letting that go. 2. It does not give them exclusive use of the easement. Given the location of the easement, we think we can get there on that issue as well. Clay is going to forward me some emails between the AT&T attorneys and him that might give you more insight. We need to get somewhere that we can live with on this. I will be gone tomorrow, but will have my blackberry. Also, I will be here on Monday and all next week. Carmen Moran Director of Development Services Town of Addison P.O. Box 9010 Addison, TX 75001 Ph: 972-450-2886 Fax: 972-450-2837 Email: cmoran@addisontx.gov ****************************************************************************************************************** This e-mail and any files or attachments transmitted with it contains Information that is confidential and privileged. This document may contain Protected Health Information (PHI) or other information that is intended only for the use of the individual(s) and entity(ies) to whom it is addressed. If you are the intended recipient, further disclosures are prohibited without proper authorization. If you are not the intended recipient, any disclosure, copying, printing, or use of this information is strictly prohibited and possibly a violation of federal or state law and regulations. If you have received this information in error, please delete it and notify Hamid Khaleghipour at 972-450-2868 immediately. Thank you. ******************************************************************************************************************* ****************************************************************************************************************** This e-mail and any files or attachments transmitted with it contains Information that is confidential and privileged. This document may contain Protected Health Information (PHI) or other information that is intended only for the use of the individual(s) and entity(ies) to whom it is addressed. If you are the intended recipient, further disclosures are prohibited without proper authorization. If you are not the intended recipient, any disclosure, copying, printing, or use of this information is strictly prohibited and possibly a violation of federal or state law and regulations. If you have received this information in error, please delete it and notify Hamid Khaleghipour at 972-450-2868 immediately. Thank you. *******************************************************************************************************************