Loading...
Z-93-01-28-12G - 1/28/1993ESCROW AGREEMENT This Escrow Agreement (the "Escrow Agreement ") is by and between RANDY MORINE HERITAGE PROPERTIES, INC., a Texas corporation ( "Morine "), THE CITY OF ROUND ROCK (the "City ") and FRANKLIN FEDERAL BANCORP ( "Escrow Agent ") regarding funds to be deposited by Morine with the Escrow Agent and disbursements to be made by the Escrow Agent pursuant to the terms of this Escrow Agreement. RECITALS WHEREAS, Morine is obligated to "post fiscal" as required by the City in the amount of One Hundred Eighty -Nine Thousand Four Hundred Twenty -Five and No /100's Dollars ($189,425.00) regarding Morine's final platting of the following- described Subdivision, said amount evidencing Morine's obligation to pay for the construction of certain infrastructure in connection with Morine's development of the following- described Subdivision in Williamson County, Texas (the "Subdivision "), to -wit: OAK BLUFF ESTATES, PHASE 2, AMENDMENT NO. 1, a subdivision in Williamson County, Texas, according to the map or plat to be recorded in the Plat Records of Williamson County, Texas, as approved by the City of Round Rock on or about March 4, 1993, and WHEREAS, Morine and the City have agreed that Morine's obligation to "post fiscal" as described hereinabove will be met by Morine's deposit of the sum of $189,425.00 in cash with the Escrow Agent, which Escrowed Funds will be disbursed by Escrow Agent pursuant to the terms and conditions of this Escrow Agreement. AGREEMENT For and in consideration of the mutual benefits to be derived by the parties, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, MORINE and the CITY agree as follows: 1. Morine and the City hereby appoint FRANKLIN FEDERAL BANCORP to act as their "Escrow Agent" under the terms and conditions of this Escrow Agreement. 2. Morine shall deposit the sum of $189,425.00 in cash with the Escrow Agent, the sums received by Escrow Agent hereunder being referred to herein as the "Escrowed Funds ". The Escrowed Funds represent the amount Morine and the City estimate is necessary to commence and complete construction of certain infrastrucure in the Subdivision, such infrastructure being more specifically described as follows: water and wastewater lines, drainage improvements and streets (referred to herein collectively as the "infrastructure ". Escrow Agent agrees to disburse the Escrowed Funds under the terms and conditions set forth in this Escrow Agreement. 3. The Escrowed Funds are intended to be used only to pay the reasonable and necessary costs, fees and expenses for the construction of the proposed infrastructure and except as specifically provided herein, Escrow Agent shall disburse the Escrowed Funds during the progress of the construction of the proposed infrastructure only after receipt of the following documents: (a) one or more Applications for Payment describing the amounts due and the portion of infrastructure completed, to be in the form attached hereto marked Exhibit "B ", which Applications for Payment must be signed and dated by Morine or Morine's duly authorized representative and by the City's duly authorized agent; (b) an Affidavit of Completion and Indemnity relating to the Application for Payment submitted, to be in the form attached hereto marked Exhibit "A ", which Affidavit must be signed and dated by Morine or Morine's duly authorized representative; 1 and (c) a Lien Waiver to be executed by each contractor, subcontractor, laborer or supplier entitled to receive payment (pursuant to the Application(s) for Payment) in a form mutually acceptable to Morine and the Escrow Agent, which Affidavit must be signed and dated by said contractor, subcontractor, laborer or supplier or its duly authorized officer or representative. 4. In the event construction of the proposed infrastructure is not diligently and continuously pursued to completion within 180 days from the date construction of the proposed infrastructure is commenced (not counting delays caused by bad weather, labor stoppages, riot, acts of war, governmental interference, protests, acts of God, supply or material shortages, or other interference with construction which is beyond the control of Morine) as contemplated in this Escrow Agreement, and upon receipt by the Escrow Agent of a letter from the City certifying as to Morine's failure to diligently and continuously pursue construction of the proposed infrastructure as contemplated herein, Escrow Agent shall be required to promptly disburse the remaining Escrowed Funds to the City. In this event, the City shall then have the option, in its sole discretion, to continue employment of the contractor or contractors currently working on the construction of the infrastructure, or to employ a new contractor or contractors to complete construction of the infrastructure; provided, however, the City agrees to disburse the remaining Escrowed Funds in the same manner as contemplated in this Escrow Agreement by securing the items set forth in Paragraphs 3 (a), (b) and (c) above from such contractor or contractors. The parties hereto agree that the Escrowed Funds shall be used only to complete construction of the proposed infrastructure and any amounts not used or needed with regard thereto shall be promptly paid to Morine. Promptly after commencement of construction of the infrastructure, Morine agrees to furnish the Escrow Agent and the City in writing with the exact date of the commencement of construction of the infrastructure. 5. Escrow Agent shall deposit the Escrowed Funds in an interest - bearing segregated trust account at one or more federally insured national banks (as necessary to fully insure all of the Escrowed Funds). Escrow Agent shall otherwise not be responsible for the sufficiency of the amounts deposited hereunder as to this Escrow Agreement or any other agreement between the parties. 6. Escrow Agent shall in no case or event be liable for the failure of any of the conditions of the escrow beyond its control or for any acts or omissions done in good faith, nor for any claims, demands or losses made by or suffered by any party to this escrow caused by the exercise of Escrow Agent's discretion in any particular manner, or for any other reason except for gross negligence or willful misconduct with reference to this escrow. Escrow Agent shall not be liable for any parties' failure to comply with any of the provisions of this Escrow Agreement. 7. It is also agreed that if any controversy arises between the parties hereto or with any third party with respect to the subject matter of this Escrow Agreement, its terms or conditions, Escrow Agent shall not be required to determine or construe the legality of any such controversy or to take any other action, but may await the settlement of any such controversy in an appropriate legal proceeding, and in such event Escrow Agent shall not be liable for damages, losses or claims resulting therefrom. If Escrow Agent is aware of a controversy between Morine and the City, then Escrow Agent shall have the right to require the receipt, release and authorization in writing of all parties (including evidence of authority such as a certified corporate resolution) before paying the Escrowed Funds to any party and will not be liable for interest (other than that actually earned and received, if any) or other charge on the Escrowed Funds. 8. Escrow Agent shall have the right to hold any money or documents in Escrow Agent's possession in connection with or 2 concerning this Escrow Agreement until a mutual agreement has been reached between all of said parties or until delivery is legally authorized and ordered by final judgment or decree of a court of competent jurisdiction and until any such additional compensation, fees, costs and expenses incurred by Escrow Agent in this regard shall be paid, and the parties hereto promise to pay such sums due and owing to Escrow Agent upon demand. 9. It is further agreed that this escrow agreement shall be effective until January 1, 1994, unless sooner terminated by the fulfillment of the requirements of this Escrow Agreement or the mutual consent of the parties hereto. Extension of the term of this Escrow Agreement may be entered into any time by the mutual consent of all of the parties hereto in writing and delivered to and accepted by the Escrow Agent. In the event this Escrow Agreement is terminated as set forth herein, the parties hereto agree to promptly execute and deliver to Escrow Agent the Release set forth below. 10. In the event that any party brings suit for the breach of this Escrow Agreement, the prevailing party shall be entitled to recover all reasonable attorney's fees, costs and expenses incurred by the prevailing party in connection therewith from the non - prevailing party. 11. All notices, demands and requests hereunder shall be in writing and shall be deemed to have been properly delivered and received (1) as of the date of delivery to the addresses set forth below if personally delivered, (2) two (2) business days after (a) deposited in a regularly maintained receptacle for the United States mail, certified mail, return receipt requested and postage prepaid, or (b) deposited with Federal Express or comparable overnight delivery system for overnight delivery with all costs prepaid. All notices, demands and requests hereunder shall be addressed as follows: MORINE: Randy Morine Heritage Properties, Inc. 7200 North MoPac Expressway Suite 450 Austin, Texas 78731 -2563 (512) 343 -2990 with a copy to: MORINE'8 ATTORNEY: Steven H. Sproull Hall, Goldsmith, Black, Sproull & Osborne, L.L.P. 711 San Antonio Street Austin, Texas 78701 ESCROW AGENT: 3 THE CITY: Robert L. Bennett City Manager 221 East Main Street Round Rock, Texas 78664 (512) 255 -3612 THE CITY'S ATTORNEY: Steve Sheets 309 East Main Street Round Rock, Texas 78664 (512) 255 -8877 Franklin Federal Bancorp Attn: Vincent McConnell, Assistant Vice - President 505 Round Rock Avenue Round Rock, Texas 78680 (512) 255 -2586 or to such other address which either party may so designate by delivering five (5) days prior written notice to the other party. 12. It is further agreed between the parties that this Escrow Agreement supersedes any other agreement with reference to the matters set forth herein insofar as the Escrow Agent is concerned and that the Escrow Agent may rely absolutely on this Escrow Agreement to the exclusion of any and all other agreements between the parties hereto. 13. This Escrow Agreement may be executed in multiple counterparts and each counterpart so executed shall be deemed to be an original. This Escrow Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective heirs, legal representatives, successors and assigns. By: Date: By: Title: NOTICE "THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES." Executed on the dates set forth below but to be effective as of the date executed by the Escrow Agent as set forth below. RANDY MORINE HERITAGE PR Randy Morine, Presiden /( r? .3 THE CITY OF ROUND ROCK Prin Name: JO, NJg LW? Date: 8 ACCEPTED: ESCROW AGENT: FRANKLIN FEDERAL BANCORP By:� Gc2j /Gf Vincent McConnell, Assistant Vice - President Date: (C,(°13 RTIES, INC. 4 STATE OF TEXAS § § COUNTY OF TRAVIS § This instrument was acknowledged before me on the 1W day of March, 1993, by Randy Morine, President of RANDY MORINE HERITAGE PROPERTIES, INC., a Texas corporation, on behalf of said corporation. °„:; CHRISTINE R. MARTINEZ Notary Public, State of Texas My Commission Expires JUNE 22, 1993 STATE OF TEXAS COUNTY OF WILLIAMSON § This instrument was acknowledged before me on the 16 day of March, 1993, by JD/1.0 JB LAN A55157,4Nr (I Ttj i77/3)V114ER. (title) of THE CITY OF ROUND ROCK, a municipal corporation, on behalf of said corporation. 4 " CHRISTINE R. MARTINEZ !U 1 Notary Public, Stale of Texas My Commission Expires JUNE 22, 1993 STATE OF TEXAS COUNTY OF WILLIAMSON LINDA M. OSORIO Notary Public, State of Texas .7y Commission ExpirtsSepe 14,1993 L? Iuu.at0,u e b}'l Notary Publip „Kate � f Print name: et-trl My commission expires: § § e /i Notary Publi S ate of T Print name: ff 5 , • � ,e77,1EZ My commission expires: ^p § § § This instrument was acknowledged before me on theI(,3tt -day of March, 1993, by Vincent McConnell, Assistant Vice - President of FRANKLIN FEDERAL BANCORP, a federal banking association, on behalf of said association. 5 I •i:ty Public, :L State Qf_Tex � Print name: My commission expires: G t .- 14- 0 13 rCZ The undersigned acknowledge that the Escrowed Funds, monies, instruments and documents deposited with Escrow Agent under this Escrow Agreement have been disbursed or returned in accordance with this Escrow Agreement, that the Escrow Agreement has been duly satisfied, cancelled and discharged, and First Federal Bancorp as Escrow Agent, are hereby released, indemnified and discharged from all liabilities and obligations undertaken, connected with, or growing out of the Escrow Agreement. RANDY MORINE HERITAGE PROPERTIES, INC. By: Date: THE CITY OF ROUND ROCK By: Print Name: Title: Date: By: Randy Morine, President ACCEPTED: ESCROW AGENT: FRANKLIN FEDERAL BANCORP Print Name: Title: Date: RELEASE 6 STATE OF TEXAS COUNTY OF TRAVIS COUNTY OF WILLIAMSON STATE OF TEXAS COUNTY OF WILLIAMSON § § This instrument was acknowledged before me on the day of , 199_, by Randy Morine, President of RANDY MORINE HERITAGE PROPERTIES, INC., a Texas corporation, on behalf of said corporation. STATE OF TEXAS § § § Notary Public, State of Texas Print name: My commission expires: This instrument was acknowledged before me on the day of ,199 , by (title) of THE CITY OF ROUND ROCK, a municipal corporation, on behalf of said corporation. Notary Public, State of Texas Print name: My commission expires: § § § This instrument was acknowledged before me on the day of , 199_, by (title) of FRANKLIN FEDERAL BANCORP, a federal banking association, on behalf of said association. Notary Public, State of Texas Print name: My commission expires: 7 EXHIBIT "A" AFFIDAVIT OF COMPLETION Date: , 199 Owner: RANDY MORINE HERITAGE PROPERTIES, INC. Project: Construction of infrastructure in Oak Bluff Estates, Williamson County, Texas Affiant: Property (including improvements - insert legal description): OAK BLUFF ESTATES, PHASE 2, AMENDMENT NO. 1, a subdivision in Williamson County, Texas, according to the map or plat to be recorded in the Plat Records of Williamson County, Texas, as approved by the City of Round Rock on or about March 4, 1993. Escrow Agent: FRANKLIN FEDERAL BANCORP AFFIDAVIT OF COMPLETION The undersigned Affiant, whether one or more, upon his /her /their oath, and after being duly sworn by me, the undersigned authority, swear(s) that the following statements are true and correct in every respect: 1. Owner is a Texas corporation. 2. Affiant is of Owner and is authorized to make this affidavit on behalf of Owner. 3. The construction (or portion thereof) required regarding the Project has been completed in accordance with the requirements of Owner's Application for Payment No. and the Escrow Agreement between Owner, the City of Round Rock and Escrow Agent dated March , 1993. 4. Owner has paid each of Owner's employees, agents, contractors, sub - contractors, laborers and materialmen in full for all labor, supplies and materials provided to the Project for the construction of the infrastructure (or portion thereof) on the Property pursuant to the above - described Application for Payment. 5. This affidavit is made to induce Owner and the City of Round Rock to accept the construction as completed and to induce the Escrow Agent under the above - described Escrow Agreement to disburse funds to pay for the construction of the infrastructure (or portion thereof as described in the Application for Payment). "AFFIANT" Bv: Print name: Title: 8 STATE OF TEXAS § § COUNTY OF TRAVIS § SUBSCRIBED AND SWORN TO before me, the undersigned authority, by the said corporation, on this day of Ip \019 \bankone \71.eff 9 Notary Public, State of Texas Print name: My commission expires: (title) of a Texas , 199 ITEM CONTRACTOR'S Schedule of Values Work Completed Unit Price Quantity Amount Quantity Amount $ $ $ Total (Orig. Contract) C.O. No. 1 C.O. No. 2 $ $ EXHIBIT "B" APPLICATION FOR PAYMENT NO To (OWNER) Contract for OWNER's Project No. ENGINEER's Project No. For Work accomplished through the date of Accompanying Documentation: CONTRACTOR'S Certification: The undersigned CONTRACTOR certifies that (1) all previous progress payments received from OWNER on account of Work done under the Contract referred to above have been applied to discharge in full all obligations of CONTRACTOR incurred in connection with Work covered by prior Applications for Payment numbered 1 through inclusive; and (2) title to all materials and equipment incorporated in said Work or otherwise listed in or covered by this Application for Payment will pass to OWNER at time of payment free and clear of all liens, claims, security interests and encumbrances (except such as covered by Bond acceptable to OWNER). Dated 19 Payment of the above AMOUNT DUE THIS APPLICATION is recommended. Dated , 1 9 GROSS AMOUNT DUE $ LESS -% RETAINAGE $ AMOUNT DUE TO DATE 5 LESS PREVIOUS PAYMENTS 5 AMOUNT DUE THIS APPLICATION $ By By OWNER CONTRACTOR EJCDC No. 1910 -8 -E (1983 Edition) B y Prepared by the Engineers Joint Contract Documents Committee and endorsed by The AssoemCed General Contractors of Amenca. CITY.OF ROUND ROCK's DULY AUTHORIZED AGENT Plat ") was approved by the Commissioners Court of Williamson County at a time when such property was not located in the extraterritorial jurisdiction ( "ETJ ") of the City, and WHEREAS, the property included within the Original Plat is now located within the ETJ of the City and is therefore subject to the City's subdivision ordinances and regulations, and WHEREAS, Randy Morine Heritage Properties, Inc. ("Owner") is now the owner of a portion of the property contained within the Original Plat, and WHEREAS, Owner has filed with the City an application to replat a portion of the Original Plat as shown on the replat, ( "Replat "), a copy of which is attached hereto as Exhibit "A" and incorporated herein, and WHEREAS, numerous lots located in other Phases and Blocks of Oak Bluff Estates are now developed with residential housing, and WHEREAS, the Original Plat does not meet minimum City requirements for stormwater drainage, and WHEREAS, the City Engineer has determined that the drainage characteristics of the Replat are greatly improved over the drainage characteristics of the Original Plat, and OR01283G ORDINANCE NO, 1-Q3-01-Q8- i 6- AN ORDINANCE APPROVING THE REPLAT OF A PORTION OF OAK BLUFF ESTATES, PHASE 2, BLOCK C; PROVIDING FOR A SAVINGS CLAUSE AND REPEALING CONFLICTING ORDINANCES OR RESOLUTIONS. WHEREAS, the plat for Oak Bluff Estates, Phase 2 ( "Original WHEREAS, even with the improvements, the Replat still does not meet the minimum City requirements for stormwater drainage, and WHEREAS, because of the complications posed by the previously approved plats as well as existing development, and because the stormwater drainage is improved, the City Engineering and Planning Departments have recommended approval of the Replat to the Planning and Zoning Commission, and WHEREAS, the Planning and Zoning Commission agrees with the City staff recommendation, but has no authority to approve a plat which does not meet minimum City standards, and WHEREAS, the Planning and Zoning Commission has recommended to the City Council that the Replat be approved as providing the best solution to a difficult problem, and WHEREAS, the City Council, upon recommendation of the City staff and the Planning and Zoning Commission determines that the solution to the existing drainage problem as proposed by the Replat is in the best interest of the City and its citizens, Now Therefore BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, THAT: I. That the Oak Bluff Estates, Phase 2, Amendment 1, The Replat of Oak Bluff Estates Phase 2, Lots 10, 11, 12, 13, 14, 15, 16, 17, 18, 51, 52, 53, 54, 55, 56, 57, 58, 68, 69, 70, 71, 72, 73, 74, 75, 76, and 77, Block C as shown on Exhibit "A" is hereby approved and the Chairman and Secretary of the Planning and Zoning Commission are authorized to execute said replat. 2. II. A. All ordinances, parts of ordinances, or resolutions in conflict herewith are expressly repealed. B. The invalidity of any section or provision of this ordinance shall not invalidate other sections or provisions thereof. READ and APPROVED on first reading this the a day of , 1993. READ, APPROVED and ADOPTED on second reading this the day of , 1993. ATTEST: J NE LAND, City Secretary MIKE ROBINSON, Mayor City of Round Rock, Texas 3. 01/26/93 16:46 ROUND ROCK PUBLIC WORKS t512 255 6676 NO.052 002 DATE: January 26, 1993 SUBJECT: City Council Meeting, January 28, 1993 ITEM: 12G. Consider an ordinance approving the re -plat of Oak Bluff Estates, Section 2. (First Reading) STAFF RESOURCE PERSON: Jim Ruse STAFF RECOMMENDATION: A re - plat of Oak Bluff Estates is required to improve drainage in the subdivision. Specifically, several lots currently convey substantial off -site water which cannot be carried off -site by the existing internal drainage system. Since the subdivision is substantially developed now, improvement to the conveyance system is difficult and impractical. Also, the 100 developed flows from Brushy Creek are above the street levels of at least one interior street. The developer, Randy Monne, has proposed two detention ponds to detain flows. These ponds will significantly reduce the flow from the subdivision to the conveyance system although the 100 yr. flows cannot be conveyed through the subdivision as per ordinance, this proposal is a substantial improvement and staff recommends approving this re -plat. The ordinance will teepresented at !the meeting.