R-13-08-22-G10 - 8/22/2013RESOLUTION NO. R -13-08-22-G10
WHEREAS, the City of Round Rock ("City") desires to enter into an agreement with
Continental Homes of Texas, L.P., ("Developer"), for certain public improvements associated with the
Turtle Creek Subdivision; and
WHEREAS, Vernon's Texas Codes Annotated, Local Government Code, Subchapter C,
§212.071 et. seq. authorizes municipalities with a population of 5,000 or more to enter into a contract
with a developer for the developer to construct public improvements related to the development and
for the municipality to participate in their cost; and
WHEREAS, such agreement is embodied in the attached Developer Participation Agreement,
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 the attached
Developer Participation Agreement with Continental Homes of Texas, L.P., a copy of same being
attached hereto as Exhibit "A" and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of the date, hour, place and
subject of the meeting at which this Resolution was adopted was posted and that such meeting was
open to the public as required by law at all times during which this Resolution and the subject matter
hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
RESOLVED this 22nd day of August, 2013.
1)/24.'
ALAN MCGRAW, Mayor
City of Round Rock, Texas
SARA L. WHITE, City Clerk
0112.1304; 00280349
EXHIBIT
THE STATE OF TEXAS
' KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF WILLIAMSON
DEVELOPER PARTICIPATION AGREEMENT
WHEREAS, the City of Round Rock (the "City") and D.R. Horton, (the "Developer") desire
to enter into this Developer Participation Agreement ("Agreement") for certain public improvements
associated with the Turtle Creek Subdivision; and
WHEREAS, Vernon's Texas Codes Annotated, Local Government Code, Subchapter C,
§ 212.071 et. seq. authorizes municipalities with a population of 5,000 or more to make a contract
with a developer for the developer to construct public improvements related to the development and
for the municipality to participate in their cost;
NOW THEREFORE, this Agreement is made by and between the City and the Developer.
1. The City and the Developer agree to participate in the construction of certain median
improvements on A.W. Grimes Blvd. as shown on the Construction Plans for Median Improvements
to A.W. Grimes Boulevard (the "Plans"), as prepared on 11/16/12 by Waeltz & Prete, Inc., Civil
Engineers, on file with the City of Round Rock Transportation Department and made a part of this
Agreement for all purposes (hereinafter referred to as the "A.W. Grimes Project").
2. The Developer, at its sole cost and expense, shall construct the A.W. Grimes Project
pursuant to the specifications in the Plans, in conjunction with the construction of the subdivision
improvements for the Turtle Creek Subdivision, Phase 6 and 7 (the "Subdivision Project").
Construction of the A. W. Grimes Project shall be complete and accepted by the City prior to the
recordation of any final plat in the Turtle Creek Subdivision.
3. Any amendments or change orders to the Plans or A.W. Grimes Project must be
approved in advance by the City. Any amended Plans for the A.W. Grimes Project shall comply with
all applicable city, state, and federal requirements, including the City's Design and Construction
Standards described in §8.106 of the Round Rock Code of Ordinances.
4. Prior to commencement of construction of the A.W. Grimes Project, the Developer, at
its sole cost and expense, shall execute a performance bond for the construction of the improvements
to ensure completion of the A.W. Grimes Project. The bond shall be in an amount equal to 125% of
the construction costs of all improvements shown in the Plans, as estimated by the City, and the
estimate and the bond shall be subject to the approval of the City. The bond shall be executed by a
corporate surety in accordance with chapter 2253, Government Code.
1
5. Prior to commencement of construction of the A.W. Grimes Project, the Developer
shall conduct a preconstruction conference with the City, the Developer's engineer, the Developer's
contractor, and any other affected party. The City shall inspect the construction of the A.W. Grimes
Project and all other public improvements shown in the Plans. The Developer shall insure that the
City and its agents have the right to enter upon the construction site of the A.W. Grimes Project and
all other public improvements shown in the Plans, for any purpose. Upon completion of the A.W.
Grimes Project and acceptance thereof by the City, the City shall pay to the Developer a single lump
sum payment in the amount of up to and no more than TWO HUNDRED AND THIRTY
THOUSAND DOLLARS ($230,000) (the "A.W. Grimes Project Reimbursement"). The A.W.
Grimes Reimbursement is less than 30% of the total construction costs for the public improvements
to the Subdivision Project. For purposes of this Agreement, completion of the A.W. Grimes Project
shall occur after the Developer has provided a two-year warranty bond for the A.W. Grimes Project,
and the City's Transportation Department has issued an acceptance letter for the A.W. Grimes
Project. The inspection and acceptance shall be in accordance with § 8.705 of the Round Rock Code
of Ordinances and the warranty bond shall be in accordance with § 8.706 of the Round Rock Code of
Ordinances.
6. After the City has accepted the A.W. Grimes Project, the Developer shall submit a
written request to the City for payment of the lump sum referred to above. Said written request will
include all invoices related to the construction of the A.W. Grimes Project. Conditioned upon review
and approval by the City's Finance Department, and within thirty (30) calendar days of receipt of the
above-described invoices, the City shall pay to the Developer the A.W. Grimes Project
Reimbursement.
7. As additional consideration to the Developer to undertake the obligations set forth
herein, the City hereby waives any obligation on the part of the Developer to pay any inspection fees
provided for in § 8.116 of the Round Rock Code of Ordinances associated with the construction of
the A.W. Grimes Project.
8. The maximum amount of reimbursement to the Developer by the City shall be
$230,000.00 or the actual costs of the A.W. Grimes Project, whichever amount is less.
9. This Agreement is being executed and delivered, and is to be performed, under the
laws of the State of Texas which shall govern the validity, construction, enforcement and
interpretation of this Agreement, unless otherwise specified herein.
10. In the event that judicial action is necessary for the interpretation or enforcement of
any of the covenants or conditions contained herein, the City and the Developer agree that venue is
proper in Williamson County, Texas.
11. If any provision in this Agreement is held to be illegal, invalid or unenforceable under
present or future laws, other provisions shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, a provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable shall govern.
2
12. This Agreement sets forth the entire understanding and agreement of the parties. All
other oral agreements by the parties hereto are hereby merged into this Agreement, which shall not
be amended or altered except by a written document signed by the parties hereto. This Agreement is
separate and distinguishable from and shall not constitute an amendment of, or modification to any
other Agreement between the parties.
13. If any action at law or in equity, including an action for declaratory relief, is brought
to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to
recover reasonable attorney's fees, costs of court and reasonable costs incurred to maintain such
action, from the other party, which fees may be set by the Court in the trial of such an action or may
be enforced in a separate action brought for that purpose, and which fees shall be in addition to any
other relief which may be awarded.
14. This Agreement shall inure only to the benefit of the parties hereto. No other person
or entity shall be considered as a beneficiary of this Agreement.
15. If the Developer commences construction of the Project, but fails to achieve
completion of the Project within one year after the effective date hereof, the City may utilize the
bond provided for herein to complete the Project and any other public improvements shown in the
Plans
16. If the Developer fails to commence construction of the Project within 18 months after
the effective date of hereof, the City shall have the right to terminate this Agreement and the City
shall have no further obligation to reimburse Developer.
17. Notices provided for hereunder shall be directed as follows:
(a) Notices to the City shall be directed to:
City Manager
City of Round Rock
221 East Main Street
Round Rock, TX 78664
With a photocopy to:
Transportation Director
City of Round Rock
2008 Enterprise Drive
Round Rock, TX 78664
3
(b) Notices to the Developer shall be directed to:
18. This Agreement shall be effective upon proper execution by all parties hereto.
ATTEST:
Sara White, City Clerk
DEVELOPER:
D.R. HORTON
By:
CITY OF ROUND ROCK, TEXAS
By:
Alan McGraw, Mayor
Dated:
4
1711f. --ROUND ROCK TEXAS
PURPOSE Ran PROSPERITY
City of Round Rock
Agenda Item Summary
Agenda Number: G.10
Title: Consider a resolution authorizing the Mayor to execute a Developer
Participation Agreement with Continental Homes of Texas, L.P. for certain
public improvements associated with the Turtle Creek Subdivision.
Type: Resolution
Governing Body: City Council
Agenda Date: 8/22/2013
Dept Director: Gary Hudder, Transportation Director
Cost: $230,000.00
Indexes: RR Transportation and Economic Development Corporation (Type B)
Attachments: Resolution, Exhibit A, Map
Text of Legislative File 13-553
In 2005, several phases of the Turtle Creek Village subdivision were planned and platted
along A.W. Grimes Boulevard. Phases 6 and 7 of this project included the extension of
Willow Way out to A.W. Grimes Boulevard. The anticipated result of this extension would
be the need for an additional traffic signal at this new intersection . Staff was concerned
about the growing number of traffic signals along A.W. Grimes Boulevard (with the addition
of a signal at Logan in the past few years and another signal at Creek Ridge within the last
year), and the chilling effect these signals will have on the ability of this arterial to move
traffic through our community now and into the future.
As a result, staff developed a concept to modify the median on A.W. Grimes Boulevard so
that traffic has unfettered access to and from Willow Way; however, no signalization would
be necessary with these changes. This project became known as the A.W. Grimes Median
Improvements Project. In 2012, utilizing funds from the then recently developed Bottleneck
Program, the City contracted with Waeltz & Prete, Inc., a local engineering firm, to design
these improvements.
These construction plans were completed and subsequently bid for construction, which
resulted in a low bid of over $380,000. This amount vastly exceeded the budget for this
project. As a result, all bids for this project were ultimately rejected at the March 28, 2013
Council meeting (R-13-03-28-111).
Both sides of A.W. Grimes Boulevard in this area are currently being developed by
Continental Homes, L.P. (dba D.R. Horton, America's Homebuilder). Recently, an
opportunity presented itself to construct the median improvements in an alternative manner.
City of Round Rock Page 1 Printed on 8/19/2013
Agenda Item Summary Continued (13-553)
Continental Homes was in the process of bidding their Phases 6 and 7 of the Turtle Creek
Village subdivision, which are immediately adjacent to the median improvements project.
Through staff negotiations with Continental Homes, the median improvements project was
included as an add/alternate bid item to their subdivision improvements project. As a result,
the median improvements project received a bid of $231,083.
This development agreement with Continental Homes, L.P. allows them to construct the
A.W. Grimes Median Improvements Project as a part of their subdivision improvements.
These improvements will be constructed according to the plans provided by the City within
the oversight of city inspectors. In addition, this arrangement will result in a significant cost
savings to the City and it will prevent the need to install yet another traffic signal on A .W.
Grimes Boulevard. When completed, the City will reimburse Continental Homes for the
actual cost of these improvements, not to exceed $230,000.
Cost: $230,000.00
Sourace of Funds: Round Rock Transportation and Economic Development
Corporation
Staff recommends approval.
City of Round Rock Page 2 Printed on 8/19/2013
EXECUTED
ORIGINAL
DOCUMENT
FOLLOW
THE STATE OF TEXAS
' KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF WILLIAMSON
DEVELOPER PARTICIPATION AGREEMENT
WHEREAS, the City of Round Rock (the "City") and D.R. Horton, (the "Developer") desire
to enter into this Developer Participation Agreement ("Agreement") for certain public improvements
associated with the Turtle Creek Subdivision; and
WHEREAS, Vernon's Texas Codes Annotated, Local Government Code, Subchapter C,
§ 212.071 et. seq. authorizes municipalities with a population of 5,000 or more to make a contract
with a developer for the developer to construct public improvements related to the development and
for the municipality to participate in their cost;
NOW THEREFORE, this Agreement is made by and between the City and the Developer.
1. The City and the Developer agree to participate in the construction of certain median
improvements on A.W. Grimes Blvd. as shown on the Construction Plans for Median Improvements
to A.W. Grimes Boulevard (the "Plans"), as prepared on 11/16/12 by Waeltz & Prete, Inc., Civil
Engineers, on file with the City of Round Rock Transportation Department and made a part of this
Agreement for all purposes (hereinafter referred to as the "A.W. Grimes Project").
2. The Developer, at its sole cost and expense, shall construct the A.W. Grimes Project
pursuant to the specifications in the Plans, in conjunction with the construction of the subdivision
improvements for the Turtle Creek Subdivision, Phase 6 and 7 (the "Subdivision Project").
Construction of the A. W. Grimes Project shall be complete and accepted by the City prior to the
recordation of any final plat in the Turtle Creek Subdivision.
3. Any amendments or change orders to the Plans or A.W. Grimes Project must be
approved in advance by the City. Any amended Plans for the A.W. Grimes Project shall comply with
all applicable city, state, and federal requirements, including the City's Design and Construction
Standards described in §8.106 of the Round Rock Code of Ordinances.
4. Prior to commencement of construction of the A.W. Grimes Project, the Developer, at
its sole cost and expense, shall execute a performance bond for the construction of the improvements
to ensure completion of the A.W. Grimes Project. The bond shall be in an amount equal to 125% of
the construction costs of all improvements shown in the Plans, as estimated by the City, and the
estimate and the bond shall be subject to the approval of the City. The bond shall be executed by a
corporate surety in accordance with chapter 2253, Government Code.
1
V2- ll? -0v-ZL-G-a-o
5. Prior to commencement of construction of the A.W. Grimes Project, the Developer
shall conduct a preconstruction conference with the City, the Developer's engineer, the Developer's
contractor, and any other affected party. The City shall inspect the construction of the A.W. Grimes
Project and all other public improvements shown in the Plans. The Developer shall insure that the
City and its agents have the right to enter upon the construction site of the A.W. Grimes Project and
all other public improvements shown in the Plans, for any purpose. Upon completion of the A.W.
Grimes Project and acceptance thereof by the City, the City shall pay to the Developer a single lump
sum payment in the amount of up to and no more than TWO HUNDRED AND THIRTY
THOUSAND DOLLARS ($230,000) (the "A.W. Grimes Project Reimbursement"). The A.W.
Grimes Project Reimbursement is less than 30% of the total construction costs for the public
improvements to the Subdivision Project. For purposes of this Agreement, completion of the A.W.
Grimes Project shall occur after the Developer has provided a two-year warranty bond for the A.W.
Grimes Project, and the City's Transportation Department has issued an acceptance letter for the
A.W. Grimes Project. The inspection and acceptance shall be in accordance with § 36-207 of the
Round Rock Code of Ordinances and the warranty bond shall be in accordance with § 36.206 of the
Round Rock Code of Ordinances.
6. After the City has accepted the A.W. Grimes Project, the Developer shall submit a
written request to the City for payment of the lump sum referred to above. Said written request will
include all invoices related to the construction of the A.W. Grimes Project. Conditioned upon review
and approval by the City's Finance Department, and within thirty (30) calendar days of receipt of the
above-described invoices, the City shall pay to the Developer the A.W. Grimes Project
Reimbursement.
7. As additional consideration to the Developer to undertake the obligations set forth
herein, the City hereby waives any obligation on the part of the Developer to pay any inspection fees
provided for in § 36-16 of the Round Rock Code of Ordinances associated with the construction of
the A.W. Grimes Project.
8. The maximum amount of reimbursement to the Developer by the City shall be
$230,000.00 or the actual costs of the A.W. Grimes Project, whichever amount is less.
9. This Agreement is being executed and delivered, and is to be performed, under the
laws of the State of Texas which shall govern the validity, construction, enforcement and
interpretation of this Agreement, unless otherwise specified herein.
10. In the event that judicial action is necessary for the interpretation or enforcement of
any of the covenants or conditions contained herein, the City and the Developer agree that venue is
proper in Williamson County, Texas.
11. If any provision in this Agreement is held to be illegal, invalid or unenforceable under
present or future laws, other provisions shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, a provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable shall govern.
2
12. This Agreement sets forth the entire understanding and agreement of the parties. All
other oral agreements by the parties hereto are hereby merged into this Agreement, which shall not
be amended or altered except by a written document signed by the parties hereto. This Agreement is
separate and distinguishable from and shall not constitute an amendment of, or modification to any
other Agreement between the parties.
13. If any action at law or in equity, including an action for declaratory relief, is brought
to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to
recover reasonable attorney's fees, costs of court and reasonable costs incurred to maintain such
action, from the other party, which fees may be set by the Court in the trial of such an action or may
be enforced in a separate action brought for that purpose, and which fees shall be in addition to any
other relief which may be awarded.
14. This Agreement shall inure only to the benefit of the parties hereto. No other person
or entity shall be considered as a beneficiary of this Agreement.
15. If the Developer commences construction of the Project, but fails to achieve
completion of the Project within one year after the effective date hereof, the City may utilize the
bond provided for herein to complete the Project and any other public improvements shown in the
Plans
16. If the Developer fails to commence construction of the Project within 18 months after
the effective date of hereof, the City shall have the right to terminate this Agreement and the City
shall have no further obligation to reimburse Developer.
17. Notices provided for hereunder shall be directed as follows:
(a) Notices to the City shall be directed to:
City Manager
City of Round Rock
221 East Main Street
Round Rock, TX 78664
With a photocopy to:
Transportation Director
City of Round Rock
2008 Enterprise Drive
Round Rock, TX 78664
3
(b) Notices to the Developer shall be directed to:
Continental Homes of Texas, L.P.
Attn: Richard Maier
10700 Pecan Park Blvd., Suite 400
Austin, Texas 78750
With a photocopy to:
Timothy C. Taylor, Esq.
Jackson Walker L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
18. This Agreement shall be effective upon proper execution by all parties hereto.
ATTEST:
Sara White, City geefetttre,k4AL.
DEVELOPER:
Continental Homes of Texas, L.P., a Texas limited
partnership doing business as D.R. Horton
America' .. 1. -
By: /,��
Its: 1,7
CITY OF ROUND ROCK, TEXAS
By: Ohl /1.
Alan McGraw, Mayor
Dated: ±:•• 22 - (3
4
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF VO \`\%CL4 OCr1
This instrument was acknowledged before me on this the 1 day of - J y
2013 by �� c rd )JG ► QT , v cA 9 c , k of Continental Homes of Texas, L.P., a
Texas limited partnership doing business as D.R. Horton — America's Builder, on behalf of said
partnership.
,, P�,
0 . , oy STACY M LAINE
°g Notary Public, State of Texas
My Commission Expires
S44 of "It*
May 29, 2016
STATE OF TEXAS
COUNTY OF WILLIAMSON
0/1
Notary Public t. to of Texas
ACKNOWLEDGMENT
This instrument was acknowledged before me on this the p naday o
by Alan McGraw, Mayor, on behalf of the City of Round Rock, Texas.
0‘M P N M so
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9iR OF
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2013
5