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R-92-1732 - 7/09/1992RESOLUTION NO. 1732R WHEREAS, 7302 WHEREAS, HF2M, Inc. ("Developer") has filed for approval of a final plat for the Plantation subdivision, and WHEREAS, in lieu of filing a letter of credit to secure its performance in completing the subdivision improvements, the Developer has offered to execute a Subdivision Construction Agreement ("Agreement"), and WHEREAS, the City Council has determined said Agreement to be acceptable, 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 an Agreement with HF2M, Inc. for its performance in completing the subdivision improvements for the Plantation subdivision, a copy of said agreement being attached hereto and incorporated herein for all purposes. RESOLVED this 9th day of July, 1992. MIKE ROBINSON, Mayor City of Round Rock, Texas ATTEST: NE LAND, City Secretary RS07092E SUBDIVISION CONSTRUCTION AGREEMENT 1. Parties. The parties to this Subdivision Construction Agreement (the "Agreement") are HF2M, Inc. (individually and collectively, the "Subdivider") and the City of Round Rock, Texas (the "City"). 2. Effective Date. This Agreement is effective on the date it is approved by the City Council. Recitals 3. Subdivider is the owner of the land included in the proposed final subdivision plat of the Plantation subdivision, as shown in City's File Number 92-3035 (the "Subdivision") and more particularly described by the metes and bounds description attached and incorporated into this Agreement as Exhibit A (the "Property"); and 4. Subdivider seeks authorization from the City to subdivide the Property in accordance with the requirements imposed by Texas statues and the City's ordinances, regulations, and other requirements; and 5. City ordinances require the completion of various improvements in connection with the development of the Subdivision to protect the health, safety, and general welfare of the community and to limit the harmful effects of substandard subdivisions; and 6. The purpose of this Agreement is to protect the City from the expense of completing subdivision improvements required to be installed by the Subdivider; and 7. This Agreement is authorized by and consistent with state law and the City's ordinances, regulations, and other requirements governing development of a subdivision. IN CONSIDERATION of the foregoing recitals and the mutual covenants, promises, and obligations by the parties set forth in this Agreement, the parties agree as follows: Subdivider's Obligations 8. Improvements. The Subdivider agrees to construct and install, at Subdivider's expense, all external and internal subdivision improvements required to comply with City ordinances, regulations, and policies governing subdivision approval, specifically including without limitation those improvements listed on Exhibit B attached and incorporated by reference into 1 this Agreement (collectively, the "Improvements," any one of which is an "Improvement"), unless the City and Subdivider have otherwise agreed by executing a separate written agreement that the Subdivider shall fund a proportionate share of the required External Subdivision Improvements. All Improvements shall be constructed in conformance with the City's requirements, procedures, and specifications (including without limitation environmental protection requirements such as erosion controls and site restoration), pursuant to construction plans, permits, and specifications approved by the City prior to commencement of construction, and subject to inspection, certification, and acceptance by the City. 9. Completion. Construction of all the Improvements shall be completed no later than six (6) months after the Effective Date (the "Completion Date"). Upon completion of each of the Improvements, the Subdivider agrees to provide to the City a complete set of construction plans for the Improvements, certified "as built" by the engineer responsible for preparing the approved construction plans and specifications. 10. Warranty. The Subdivider warrants the Improvements constructed by Subdivider or Subdivider's agents, contractors, employees, tenants, or licensees will be free from defects for a period of one (1) year from the date the City accepts the dedication of a completed Improvement or group of Improvements (the "Warranty Period"), as such Improvement or group of Improvements is separately identified and listed on Exhibit B. The Subdivider agrees to repair any damage to the Improvements before and during the Warranty Period due to private construction -related activities. As a condition of the City's acceptance or dedication of any of the Improvements, the City may require the Subdivider to post a maintenance bond of other financial security acceptable to the City to secure the warranty established by this Agreement. City's Obligations 11. Inspection and Certification. The City agrees to inspect Improvements during and at the completion of construction and, if completed in accordance with the standards and specifications for such Improvements, to certify the Improvements as being in compliance with City standards and specifications. The inspections and certifications will be conducted in accordance with standard City policies and requirements. The Subdivider grants the City, its agents, employees, officers, and contractors an easement and license to enter the Property to perform such inspections as it deems appropriate. 12. Notice of Defect. The City will provide timely notice to the Subdivider whenever inspection reveals that an Improvement is not constructed or completed in accordance with the standards and specifications for such Improvement or is otherwise defective. The Subdivider will have thirty (30) 2 days from such notice to cure of substantially cure the defect. The City may not declare a default under this Agreement during the 30 -day cure period on account of any such defect unless it is clear that the subdivider does not intend to cure the defect. Notwithstanding the previous sentences in this Paragraph, if, in the reasonable opinion of the City, the defect creates an immediate and substantial harm to the public health or safety, and the notice of defect includes a statement explaining why the defect creates such immediate and substantial harm, the cure period may be shortened to no less than five (5) days and the City may declare a default under this Agreement if not satisfied that the defect is cured after the cure period. 13. Measure of Damages.The measure of damages for breach of this Agreement by the Subdivider is the reasonable cost of completing the Improvements in conformance with the City's requirements, procedures, and specifications, including without limitation associated administrative expenses. For Improvements upon which construction has not begun, the estimated cost of the Improvements shown on Exhibit B will be prima facie evidence of the minimum cost of completion; however, that amount does not establish the maximum amount of the Subdivider's liability. 14. Power of Attorney. If for any reason the Subdivider fails to complete his obligations under this Agreement the Subdivider grants the City his limited power of attorney to act in his name, place and stead to do and perform any act which is necessary to vacate the above described subdivision plat. 15. Remedies. The remedies available to the City and the Subdivider, under this Agreement and the laws of Texas, are cumulative in nature. 16. Indemnification. The Subdivider hereby expressly agrees to indemnify and hold the City harmless from and against all claims, demands, costs, and liability of every kind and nature, including reasonable attorney's fees for the defense of such claims and demands, arising from any breach on the part of Subdivider of any provision in this Agreement, or from any act or negligence of Subdivider or Subdivider's agents, contractors, employees, tenants, or licensees in the construction of the Improvements. The Subdivider further agrees to aid and defend the City if the City is named as a defendant in an action arising from any breach on the part of Subdivider of any provision in this Agreement, or from any act or negligence of Subdivider or Subdivider's agents, contractors, employees, tenants, or licensees in the construction of the Improvements, except where such suit is brought by the Subdivider. The Subdivider is not an employee or agent of the City. Notwithstanding anything to the contrary contained in this Agreement, the Subdivider does not agree to indemnify and hold the City harmless from any claims, demands, costs, or liabilities arising from any act or negligence of the City, its agents, contractors, employees, tenants, or licensees. 3 17. Restriction of Property Transfer. No lot or parcel contained within the subdivision shall be transferred to any new owner, nor shall any option to purchase be granted which does not provide for a full refund of money in the event that the plat is vacated, under section 14 of this Agreement, prior to the completion and acceptance of all Improvements required by this Agreement. The City shall execute and record such documents necessary to release this restriction within ten (10) days of accepting all Improvements for the subdivision. 18. No Waiver. No Waiver of any provision of this Agreement will be deemed or constitute a waiver of any other provision, nor will it be deemed or constitute a continuing waiver unless expressly provided for by a written amendment to this Agreement; nor will the waiver of any default under this Agreement be deemed a waiver of any subsequent defaults of the same type. The failure at any time to enforce this Agreement or covenant by the City, the Subdivider, his heirs, successors or assigns, whether any violations thereof are known or not, shall not constitute a waiver or estoppel of the right to do so. 19. Assignability. The benefits and burdens of this Agreement are personal obligations of the Subdivider and also are binding on the heirs, successors, and assigns of the Subdivider and on any person acquiring an ownership interest in the Property through the Subdivider. The Subdivider's obligations under this Agreement may not be assigned without the express written approval of the City. The City's written approval may not be withheld if the Subdivider's assignee explicitly assumes all obligations of the Subdivider under this Agreement and has posted the required security. An assignment shall not be construed as releasing the Subdivider from Subdivider's obligations under this Agreement, and Subdivider's obligations hereunder shall continue notwithstanding any assignment approved pursuant to this Paragraph, unless and until the City executes and delivers to the Subdivider a written release of Subdivider from the obligations imposed by this Agreement. The City, in its sole discretion, may assign some or all of its rights under this Agreement, and any such assignment shall be effective upon notice to the Subdivider. 20. Notice. Any notice required or permitted by this Agreement is effective when personally delivered in writing or three (3) days after notice is deposited with the U.S. Postal Service, postage prepaid, certified with return receipt requested, and addressed as follows: if to Subdivider: HF2M, Inc. Attn: Jeff Drinkard 1106 South Mays, Suite 100 Round Rock, Texas, 78664 4 if to City: Department of Public Works City of Round Rock 221 East Main Street Round Rock, TX 78664 The parties may, from time to time, change their respective addresses listed above to any other location in the United States for the purpose of notice under this Agreement. A party's change of address shall be effective when notice of the change is provided to the other party in accordance with the provisions of this Paragraph. 21. Severability. If any part, term, or provision of this Agreement is held by the courts to be illegal, invalid, or otherwise unenforceable, such illegality, invalidity, or unenforceability shall not affect the validity of any other part, term, or provision, and the rights of the parities will be constructed as if the part, term, or provision was never part of this agreement. 22. Personal Jurisdiction and Venue. Personal jurisdiction and venue for any civil action commenced by either party to this Agreement, arising out of or relating to the Agreement, will be deemed to be proper only if such action is commenced in District Court for Williamson County, Texas. The Subdivider expressly waives any right to bring such an action in or to remove such an action to any other court, whether state of federal. 23. Release Upon Completion. Upon acceptance of all Improvements, the City agrees to complete, execute and deliver to the Subdivider a document releasing the Subdivider and Subdivider's heirs, successors and assigns, and the Property from all provision of this Agreement except those contained in Paragraph 10. 24. Captions Immaterial. The numbering, order, and captions or headings of the paragraph of this Agreement are for convenience only and shall not be considered in construing this Agreement. 25. Entire Agreement. This Agreement contains the entire agreement between the parties and correctly sets forth the rights, duties, and obligations of each to the other as of the Effective Date. Any oral representations or modifications concerning this Agreement shall be of no force or effect excepting a subsequent written modification executed by both parties. 26. Authorization to Complete Blanks. By signing and delivering this Agreement to the appropriate official of the City, the Subdivider authorizes completion of this Agreement by filling in the Effective Date below. 5 27. Binding Agreement. The execution and delivery of this Agreement and the performance of the transactions contemplated thereby have been duly authorized by all necessary corporate and governmental action of the City. This Agreement has been executed and delivered by each party, and constitutes a legal, valid, and binding obligation of each party enforceable in accordance with the terms as of the Effective Date. EXECUTED by the parties to be effective as of the day of , 19 City of Round Rock By: Mike Robinson, Mayor STATE OF TEXAS {} COUNTY OF WILLIAMSON {} This instrument was acknowledged before me on the day of 1992 by as Mayor for the City of Round Rock, a municipal corporation of behalf of said municipal corporation. Signature of Notary Printed Name of Notary My Commission Expires: 6 HF2M, Inc. By: Jeff Drinkard (Subdivider) STATE OF IDAHO COUNTY OF ADA This instrument was acknowledged before me on the day of 1992 by as for EXHIBITS: Exhibit A - Property Description Exhibit B - Subdivision Improvements 7 Signature of Notary Printed Name of Notary My Commission Expires: EXHIBIT A: METES AND BOUNDS DESCRIPTION OF PROPERTY FIELD NOTES FOR A 12.9043 ACRE TRACT OF LAND SITUATED IN THE DAVID CURRY SURVEY, ABSTRACT NO. 130, IN WILLIAMSON COUNTY, TEXAS, CONSISTING OF A 12.4891 ACRE PORTION OF A 12.864 ACRE TRACT OF LAND CONVEYED BY EDGAR E. HOPPE TO HF2M, INC. 8Y INSTRUMENT RECORDED IN VOLUME 1944, PAGE 271 OF THE OFFICIAL RECORDS OF WILLIAMSON COUNTY, TEXAS, ANO A 0.4150 ACRE TRACT OF LAND CONVEYED BY EDGAR E. HOPPE TO HF2M, INC. BY INSTRUMENT RECORDED IN VOLUME 2045 , PAGE 385 OF SAID OFFICIAL RECORDS, SAID 12.9043 ACRE TRACT OF LAND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING at an iron rod found on a point being the north common corner of Lot 94 and Lot 95, Block 0, of "The Woods Section Four", a subdivision in 'Williamson County, Texas, according to the map or plat thereof recorded in Plat Cabinet G, Slides 77 & 78 of the plat records of said county, said point being also the southwest corner of Lot 1 of "Dresden Elementary School Subdivision", a subdivision in said county according to the map or plat thereof recorded in Plat Cabinet I, Slides 327 & 328, and from which, the computed westerly southwest corner of the David Curry Survey, Abstract No. 130 bears S590.II w ' a distance of 4891.7 ft. (based on records),said point being also the southeast corner and POINT OF BEGINNING hereof; THENCE in part with the south boundary line of said 12.864 acre tract of land, the south boundary line of said 0.4150 acre tract of land and in part with the north boundary line of said "The Woods Section Four", "The Woods Section Five -A", a subdivision in said county according to the map or plat thereof recorded in Plat Cabinet I, Slides 162 & 163 of said plat records and also in part with thenorth boundary line of "The Woods Section One", a subdivision in said county according to the map or plat thereof recorded in Plat Cabinet F, Slides 239 & 240 of said plat records, the following courses numbered 1 thru 3: 1.) S69°24'50"W for a distance of 96.08 ft. to an iron rod found on an angle point; 2.) S70°28'51"W for a distance of 503.68 ft. to an iron rod found on a point; 3.) S70°44'48"W for a distance of 350.54 ft. to an iron rod set on a point for the southwest corner hereof; THENCE departing said common boundary line in part with the west boundary line of a 4,256 sq.ft. portion of said 0.4150 acre tract of land designated Tract IV in said deed and In part with the east boundary line of a 361 square ft. portion of said 12.864 acre tract of land designated as Tract II in a deed to Edgar E. Hoppe from HF2M, Inc. recorded in Volume 2045 Page 37i of said official records, N00°23'17W at a distance of 156.81 ft. pass an ron rod set on the north corner of said Tract IV, same being the south corner of said Tract 1I, continue on said course for a total distance of 199.63 ft. to an iron rod set on a point being the northeast corner of said Tract II, said point being in the curving south right-of-way line of Plantation Drive (50.00 ft. width), a street in a subdivision to be known as "The Plantation Section One", for an angle point in the west boundary line hereof; THENCE with the curving right-of-way line of said street, same being in part the north boundary line of said Tract II and the south boundary line of a 13,821 sq. ft. portion of the above referenced 0.4150 acre tract designated as Tract III in said deed, with curve to the right, having a radius of 465.00 ft., an interior angle of 12°19'18", at an arc length of 16.54 pass an iron rod set on the northwest corner of said Tract II, same being the southeast corner of said Tract III, continue for total arc length of 100.00 ft. and a total chord which bears N84°35'22"W for a distance of 99.81 ft. to an iron rod set on the southwest corner of said Tract III, being an angle point in the westerly boundary line hereof; 8 THENCE departing the southerly right-of-way line of said street, in part with the westerly boundary line of said street as dedicated by the above referenced "The Plantation Section One" and with the west boundary line of said Tract III N20°07'57"E for a distance of 238.47 ft. to an iron rod set on a point being the northwest corner of said Tract III and an angle point in the westerly boundary line hereof; THENCE in part with the north boundary line of said Tract III, and in part with the easterly boundary line of a 15,971 sq. ft. tract of land designated as Tract I in a deed from HF2M, Inc. to Edgar E. Hoppe recorded in Volume 2045 , Page 371 of said official records, N78°00'00"E at a distance of 41.41 ft. pass an iron rod set on the northeast corner of said Tract II1, same being the southwest corner of said Tract I, continue for a total distance of 120.00 ft. to an iron rod set on a point; THENCE continuing with the easterly boundary line of said Tract I the following courses numbered 1 thru 5: 1.) N54°06'25"E for a distance of 70.00 ft. to an iron rod set on a point; 2.) N36°59'57"E for a distance of 70.00 ft. to an iron rod set on a point; 3.) N19°53'28"E for a distance of 70.00 ft. to an iron rod set on a point; 4.) N01°45'20"E for a distance of 82.35 ft. to an iron rod set on a point; 5.) N16°49'20"W for a distance of 190.43 ft. to an iron rod set on a point in the curving southerly right-of-way line of F.M. 3406 (120.00 ft. width) said point being the northeast corner of said Tract I and the northwest corner hereof; • THENCE with said right-of-way, same being the north boundary line of said 12.864 acre tract of land, with curve to the left, having a radius of 1969.86 ft., a central angle of 00°31'04", an arc length of 17.80, and a chord which bears N71°02'29"E, 17.80 ft_ to a State Department of Highways and Public Transportation brass cap monument in concrete found on a point of tangency, being 60.00 ft. right of highway station 443+46.21, said point being a point of tangency in the north boundary line hereof; THENCE continuing with said right-of-way line, same being the north boundary line of said 12.864 acre tract of land, N70°46'56"E for a distance of 463.14 ft. to an iron rod found on a point being the northwest corner of said "Dresden Elementary School Subdivision" and the northeast corner of said 12.864 acre tract of land for the northeast corner hereof; THENCE departing said right-of-way line with the west boundary line of said "Dresden Elementary School Subdivision", S20°35'16"E for a distance 775.33 ft. to the POINT OF BEGINNING hereof and containing 12.9043 acres of land area. 9 EXHIBIT B: SUBDIVISION IMPROVEMENTS External Subdivision Improvements. Subdivider and City agree the following improvements located outside the boundaries of the Subdivision are required in connection with the approval and development of the Subdivision (collectively, the "External Subdivision Improvements"). Subdivider agrees to deliver a financial guarantee acceptable in form and substance to the City in an amount equal to Subdivider's pro -rata share of the estimated cost to construct and install the External Subdivision Improvements, in the amount listed below, as follows: a) b) c) *Description of Improvement(s) Offsite 8" PVC wastewater Offsite 54" CMP drainage Offsite detention pond Total Estimated Cost $ 34,420.00 180,000.00 33,800.00 Subdivider Pro -rata Share 100% 100% 100% Internal Subdivision Improvements. Subdivider and City agree the following improvements located inside the boundaries of the Subdivision are required in connection with the approval and development of the Subdivision (collectively, the "Internal Subdivision Improvements"). Subdivider agrees to deliver a financial guarantee acceptable in form and substance to the City in an amount equal to the Estimated Cost of Completion listed below, as follows: *Description of Improvement(s) a) b) c) * Road Subgrade Curbs, Gutters, Paving Drainage Inlet Boxes Estimated Cost of Completion $30,070. 36,730. 15,600. Completion of the subdivision improvements in accordance with the plans and specifications accepted by the City of Round Rock. 10 DATE: July 7, 1992 SUBJECT: City Council Meeting, July 9, 1992 ITEM: 9.E. Consider a resolution to enter into a construction agreement with HF2M, Inc. for the construction of subdivision improvements for the Plantation, Phase One. RESOURCE PERSON: Joe Vining The development of Plantation, Section One has been delayed by numerous state requirements, which now have been adequately addressed by the developers. In order to expedite development without adding significantly to the cost of completing this project, a construction agreement has been discussed with the developers. This agreement would allow the plat to be recorded without submitting a letter of credit. To assure the protection of the City the proposed contract includes two specific clauses. 1) It prohibits the sale of lots prior to all construction being approved by the City of Round Rock. 2) It allows the City of Round Rock the right to vacate the plat if has not been completed in accordance with the construction the construction drawings and specifications referenced by within six (6) months. completed and all construction agreement and that agreement The net result of this approach will be to save the developer the added cost of a letter of credit, which in today's financial environment is difficult to obtain, while assuring that the construction of the subdivision will be completed in accordance with all ordinance requirements and eliminating any risk to the City that it will be called on to complete the subdivision under any circumstances. The applicant has provided a letter confirming the lenders have agreed to terms and conditions contained in the agreement and are prepared to proceed on this basis. Economic Impact: None.