R-01-10-25-9F7 - 10/25/2001L
iODMA\ HORLDO X \O: \H00 % \RESOLUTI \R11025P] .HPO /ec
RESOLUTION NO. R- 01- 10- 25 -9F7
WHEREAS, the City of Round Rock wishes to enter into a Cost
Sharing and Reimbursement Agreement with Continental Homes of Texas,
L.P., D.R. Horton - Texas, Ltd., Texas Rainbow Company, John C. Lewis,
Jimmy Nassour, Robert W. Dillard and Diane W. Dillard, and REG
Enterprises, Inc. in connection with the development of property in the
northeast portion of Round Rock, including Ryan's Crossing, and
WHEREAS, the City Council wishes to approve said 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 a Cost Sharing and Reimbursement Agreement with
Continental Homes of Texas, L.P., D.R. Horton - Texas, Ltd., Texas
Rainbow Company, John C. Lewis, Jimmy Nassour, Robert W. Dillard and
Diane W. Dillard, and REG Enterprises, Inc. in connection with the
development of property in the northeast portion of Round Rock,
including Ryan's Crossing, a copy of said Agreement 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
ATTEST:
T r'
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended.
RESOLVED this 25th day of October, 2001.
CHRISTINE R. MARTINEZ, City Secr a
2
II_i uI 10 .A.Y_,A 1
■
ROBERT A. STLUKA, J Mayor
City of Round Rock, Texas
•
TCTR608957.16/7-16.01
COST SHARING AND REIMBURSEMENT AGREEMENT
THIS COST SHARING AND REIMBURSEMENT AGREEMENT (this "Agreement ") is executed to
be effective the day of July, 2001, by and among Continental Homes of Texas, L.P., a Texas
limited partnership doing business as Milburn Homes ( "Continental'), D.R. Horton- Texas, Ltd.,
a Texas limited partnership ( "Horton "), Texas Rainbow Company, a Texas corporation
( "Rainbow "), John C. Lewis ( "Lewis ") and Jimmy Nassour ( "Nassour "), Robert W. Dillard and
Diane W. Dillard ( "Dillard "), REG Enterprises, Inc., a Texas corporation ( "REG"), and The City
of Round Rock, a Texas municipal corporation (the "City").
RECITALS:
A. Continental is the owner of the following described property in Williamson County,
Texas ( "Continental Tract One "):
201.992 acres of land described in a Deed to Continental Homes of
Texas, L.P., recorded in Document No. 9908540, Official Records of
Williamson County, Texas, save and except 14.130 acres conveyed
to Round Rock Independent School District (the "School Site ") and
those platted lots within said 201.992 acres upon which homes have
been constructed and houses sold to third- parties.
Continental is developing the Continental Tract One as a residential subdivision known as Ryan's
Crossing. For purposes of this Agreement, the term "Ryan's Crossing Property" shall mean
Continental Tract One and the School Site and shall include all platted lots with homes sold to third -
parties; provided, however, nothing in this Agreement shall impose any financial obligation or other
duty or obligation on Round Rock Independent School District or any individual owner of a home
in the Ryan's Crossing Property.
Continental is also the owner of the following described property in Williamson County,
Texas ( "Continental Tract 71vo "):
91.116 acres, more or less, out of the WILLIS DONAHO SURVEY,
ABSTRACT NO. 173, in Williamson County, Texas, being more
particularly described in the Deed recorded under Document No.
2001036302, Official Public Records of Williamson County, Texas.
Continental Tract Two is out of and a part of the property described in the deed recorded under
Document No. 9638879, of the Official Records of Williamson County, Texas.
COST SNARING AND REIMBURSEMENT AGREEMENT Page I
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TCr2608957.16/7 -16-01
COST SHARING AND REIMBURSEMENT AGREEMENT
B. Horton is the owner of the following described property in Williamson County, Texas
(the "Horton Property"):
TRACT 1: All that certain 84.49 acres of land out of the WILLIS
DONAHO SURVEY, ABSTRACT No. 173, in Williamson County, Texas,
and being described as Tract 1 in the deed recorded under Document
No. 2000046291, in the Official Records of Williamson County,
Texas; and
TRACT 2: All that certain 0.09 if an acre of land out of the WILLIS
DONAHO SURVEY, ABSTRACT NO. 173, in Williamson County, Texas,
and being described as Tract 2 in the deed recorded under Document
No. 2000046291, in the Official Records of Williamson County,
Texas;
TRACT 3: All that certain 29.062 acres of land out of the WILLIS
DONAHO SURVEY, ABSTRACT N0. 173, in Williamson County Texas,
and being the property described in the deed recorded under
Document No. 2000063008, in the Official Records of Williamson
County, Texas.
Horton is developing the Horton Property as the Estates at Settlers Park Subdivision, a residential
subdivision.
C. Rainbow is the owner of the following described property in Williamson County,
Texas (the "Rainbow Property"):
44.96 acres of land, more or less, in the Joseph Marshall Survey,
Abstract No. 409, in Williamson County, Texas, and being the
property described in the deed recorded in Volume 1095, page 752,
of the Official Records of Williamson County, Texas.
D. Lewis andNassour are the owners of the following described property in Williamson
County, Texas (the "LNProperty"):
93.13 acres of land, more or less, in the Robert McNutt Survey,
Abstract No. 622, in Williamson County, Texas, and being the
property described in the deed recorded under Document No.
9911566, in the Official Records of Williamson County, Texas, SAVE
AND EXCEPT 5.468 acres of land, more or less, being the land
conveyed for right -of -way and described in the deed recorded under
Document No. 2000004168, in the Official Records of Williamson
County, Texas.
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TCT2608957.16/7 -16-01
E. Dillard is the owner of the following described property in Williamson County, Texas
(the "Dillard Property "):
78.158 acres of land, more or less, in the WILLIS DONAHO SURVEY,
ABSTRACT No. 173, in Williamson County, Texas, and being the
property described in the deed recorded in Volume 1390, Page 799,
of the Official Records of Williamson County, Texas.
F. REG is the owner of the following described property in Williamson County, Texas
(the "REG Property"):
6.770 acres of land, more or less, in the WILLIS DONAHO SURVEY,
ABSTRACT No. 173, in Williamson County, Texas, and being the
property described in the deed recorded under Document No.
9638879, of the Official Records of Williamson County, Texas, save
and except Continental Tract Two.
G. This Agreement and the City's joinder herein and participation in the cost of the
Projects, as hereinafter set forth, is authorized as Sections 212.071 and 212.072 of the Texas Local
Government Code.
H. The parties desire to enter into this Agreement to set forth certain covenants and
agreements with respect to the construction of two water projects which will serve the various
properties and developments describe above.
AGREEMENT:
Now, THEREFORE, for good and valuable consideration, and in consideration of the mutual
covenants and benefits herein contained, Continental, Horton, Rainbow, Lewis, Nassour, REG, and
the City covenant and agree as follows:
1. Defined Terms. The following terms shall have the meanings set forth in this
Section 1:
(a) "Costs" shall mean all soft and hard costs associated with any particular
project or phase of development, including, but not limited to, engineering costs, surveying costs,
other consulting fees, costs of labor, materials, and supplies, and any other similar costs or expenses,
but excluding the Unreimbursed Easement Costs.
(b) "Developers" means Continental, Horton, Rainbow, Lewis and Nassour,
Dillard, and REG, and their respective heirs, successors, and assigns.
(c) "Escrow Agent" means Travis Title Company.
COST SHARING AND REIMBURSEMENT AGREEMENT Page 3
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TCT/2608957.16n -16-0 I
(d) "LUE" means a living unit equivalent of water service.
(e) "Phase! Project" means the design, engineering, and construction ofa twelve
inch (12 ") waterline from Highway 79 through the Ryan's Crossing Property and Settlers Park to
County Road 113, as shown on the attached Plan.
(f) "Phase II Developers" means the Developers who will participate in and be
responsible for the Phase II Project, being Continental, Horton, and Dillard.
(g) "Phase III Developers" means the Developers who will participate in and be
responsible for the Phase DI Project, being Lewis, Nassour, Horton, Rainbow, and REG.
(h) "Phase !I Escrow Account" means the escrow account established with the
Escrow Agent into which funds for the construction of the Phase 11 Project will be deposited by the
Phase 11 Developers, as set forth in this Agreement.
(i) "Phase III Escrow Account" means the escrow account established with the
Escrow Agent into which funds for the construction of the Phase III Project will be deposited by the
Phase III Developers, as set forth in this Agreement.
(j) "Phase 17 Project" means the design, engineering, and construction of a
twenty-four inch (24 ") waterline along County Road 113 from the point of connection with the Phase
I Project west to FM 1460, as shown on the attached Plan.
(k) "Phase III Project" means the design, engineering, and construction of the
following, in the three subphases indicated: (i) a twelve inch (12 ") waterline along Highway 79 from
the eastern boundary of the Ryan's Crossing Property and the western boundary of the Rainbow
Property to the eastern right -of -way line of the existing County Road 122 and the western boundary
of the LN Property, and one thousand feet (1000') of a sixteen inch waterline (16 ") through the
Rainbow Property and north along County Road 122 (the "Phase III Subphase A Project "), and (ii)
a sixteen inch waterline (16 ") from then end of the Phase III Subphase A Project to the intersection
of County Road 122 and County Road 113, and a sixteen inch (16 ") waterline west along County
Road 113 from the intersection of County Road 122 and County Road 113 a distance of
approximately 2,400 feet (the "Phase 777 Subphase B Project "), and (iii) a sixteen inch (16 ")
waterline west along County Road 113 from the end of the Phase III Subphase B Project a distance
of approximately 1,000 feet to the point of connection of the Phase I Project with the Phase II
Project, as shown on the attached Plan (the "Phase III Subphase C Project ").
(1) "Projects" means the Phase II Project and the Phase III Project.
(m) "Project Engineer" means the registered engineer who is responsible for a
Project or a portion ofa Project. With respect to the Phase II Project and the Phase III Subphase C
Project, the Project Engineer is Randall Jones Engineering, Inc. With respect to the Phase III
Subphase A Project and the Phase III Subphase B Project, the Project Engineer is Baker- Aiklen.
COST SHARING AND REIMBURSEMENT AGREEMENT
Page 4 Settlers Park
Property
Number of LUEs
Ryan's Crossing Property
675
Horton Property
304
Rainbow Property
194
LN Property
387
Dillard Property
392
REG Property
31
Continental Tract Two
343
Developer
Project Contribution
Continental (Ryan's)
$371,250.00
Continental (Tract Two)
$188,650.00
Horton
$167,200.00
TCr2608957.16/7 -16-01
(n) "Project Manager" means the person or entity designated to manage the
design, engineering, and construction of either the Phase II Project and/or the Phase III Project and
to perform the other duties and responsibilities set forth in this Agreement.
(o) "Unreimbursed Easement Costs" means the costs associated with the
acquisition of an easement necessary for the Projects, in the estimated amount of $47,172.78.
2. LUE Allocations & Contributions. The Developers agree that their respective
contributions shall be based upon the number of LUEs each Developer has which will be served by
the Projects.
(a) The parties acknowledge that upon completion of the Project, the various
properties will have the following water LUEs reserved and allocated their respective properties:
The City hereby agrees that upon completion of the Project there shall be reserved to each property
the number of LUE's of water service set forth in this Section 2(a).
(b) Funding of Contributions by Developers. Each of the Developers will
contribute $550.00 per LUE toward the construction of the Projects. Within thirty (30) days after
the date of this Agreement, but in any event prior to commencement of construction of the Phase II
Project, each Developer will deposit their applicable contribution into the applicable Escrow
Account, such amounts being set forth as follows (with respect to each Developer, its "Project
Contribution "):
COST SHARING AND REIMBURSEMENT AGREEMENT
Page 5 Settlers Park
Developer
Project Contribution
Rainbow
. $106,700.00
Lewis/Nassour
$212,850.00
Dillard
$215,600.00
REG
$17,050.00
TOTAL
$1,279,300.00
Developer
Phase II Project
Contribution
Phase II Project
Allocation
Continental (Ryan's)
$371,250.00
59.37%
Continental (Tract Two)
$21,221.07
3.39%
Horton
$17,250.77
2.76%
Dillard
$215,600.00
34.48%
TOTAL
$625,321.84
100%
Developer
Phase III Project
' Contribution
Phase III Project
Allocation
Continental (Tract Two)
$167,428.93
25.60%
Horton
$149,949.23
22.93%
Rainbow
$106,700.00
16.32%
Lewis/Nassour
$212,850.00
32.55%
REG
$17,050.00
2.61%
TOTAL _
$653,978.16 1
100%
TCU2608957.16/7• 16A I
The Project Contributions by each Developer are allocated between the Phase II Project and the
Phase III Project as follows:
The Phase II Project Developers agree that each will share in the Cost of the Phase II Project based
upon the Phase II Project Allocations set forth above. °
The Phase II Project Developers agree that each will share in the Cost of the Phase II Project based
upon the Phase II Project Allocations set forth above.
COST SHARING AND REIMBURSEMENT AGREEMENT
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TCr/2608967.1611 -16-01
The Developers may adjust the allocation of Project Contributions between the two Projects
in order to assure that the City's contribution to either Project does not exceed 30% of the Costs for
either Project.
(c) Funding of Contribution by the City. The City agrees that it will deposit its
contribution and reimbursement as to the Phase II Project and the Phase III Project as provided in
this Section 2(c).
(i) Within thirty (30) days after the final construction contract for the
Phase II Project is executed in accordance with and pursuant to this Agreement (the "Phase II
Construction Contract "), the City will deposit with the Escrow Agent an amount equal to thirty
percent (30%) of the contract price set forth in the Phase II Construction Contract (the "City 's Phase
ZI Deposit"). The Escrow Agent will hold the City's Phase II Deposit for the Phase II Project until
such time as all conditions for the reimbursement of the Phase II Costs are satisfied, and the Phase
II Reimbursement Amount will then be distributed by the Escrow Agent in accordance with this
Agreement and the Escrow Agreement.
(ii) Within thirty (30) days after the final construction contract for the
Phase III Project is executed in accordance with and pursuant to this Agreement (the `Phase II
Construction Contract "), the City will deposit with the Escrow Agent an amount equal to thirty
percent (30%) of the contract price set forth in the Phase III Construction Contract (the "City's Phase
III Deposit "). The Escrow Agent will hold the City's Phase III Deposit for the Phase III Project until
such time as all conditions for the reimbursement of the Phase III Costs are satisfied, and the Phase
III Reimbursement Amount will then be distributed by the Escrow Agent in accordance with this
Agreement and the Escrow Agreement.
3. Phase I Project. Continental has completed construction of the Phase I Project.
Continental, Horton, and Dillard have entered into a separate agreement with respect to the sharing
of the Costs associated with the Phase I Project. None of the Project Contributions will be used to
pay for any of the Phase I Project.
4. Phase II Project. The Phase II Project will be designed, engineered, and constructed
as set forth in this Section 4.
(a) Continental to Act as Proiect Manager. The Phase II Developers, and each
of them, hereby designate Continental:
(i) to serve as the Phase II Developers' Project Manager for all aspects
of the design and construction of the Phase II Project;
(ii) to act as the Phase II Developers' representative and authorized agent
for the performance of all obligations of the Phase II Developers under this Agreement, for issuance
and receipt of notices to and from the Phase II Developers under this Agreement, and for receipt of
all reimbursement payments due from the City under this Agreement and for proper distribution of
same.
Corr SHARING AND REIMBGRSEMENr AGREEMENT Page 7
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TC112608967.1617 -16.01
(b) Design and Engineering of Phase II Project. Continental has engaged the
services of Randall Jones Engineering, Inc. ( "Jones ") to design and engineer the Phase II Project and
to prepare the construction plans for the Phase II Project (the "Phase II Plans "). The City will
expedite the review and approve the Phase II Plans, or review and promptly communicate any
objections to the Phase 11 Plans, to Continental and Jones.
(c) Acquisition of Right -of -Way. The City agrees to expedite and complete the
acquisition of the right -of -way and/or easements for the Phase II Project as soon as possible. The
costs and expenses associated with such right -of -way acquisition (other than sums actually paid to
landowners for acquisition of property or easement rights, but including $51,812.80 in related costs
allocated to Phase II) shall be paid for initially as follows: Continental shall pay for the costs of
surveys, appraisals, and similar costs (the "Phase II Condemnation Soft Costs ").
(d) Phase II Construction Contract. Continental has entered into a construction
contract with Rogers Construction for the construction of the Phase 11 Project, for a contract amount
of $630,919.50. The City and the other Phase 11 Developers approve Rogers Construction as the
contractor for the Phase 11 Project and Continental's execution of the construction contract for Phase
II for $630,919.50.
(e) Commencement of Construction. Continental has commenced and will
diligently prosecute the construction of the Phase II Project to the extent feasible, pending the City's
acquisition of the necessary right -of -way.
(f) Continental's Responsibilities. During the course of construction of the Phase
II Project, Continental, as the Phase II Project Manager, will:
(i) monitor activities of the construction contractor and the progress of
construction of the Phase II Project to encourage the timely and efficient completion of the Phase
11 Project following the approved Phase 11 Plans and construction schedule, subject to force majeure;
(ii) review inspection reports, conduct field inspections, and coordinate
with approved inspectors and the contractor to cure defects and deficiencies in the construction
before final acceptance;
(iii) arrange and observe with the contractor all acceptance testing and
notify the City and the Project Engineer of the conduct of the same;
(iv) notify the City and the Project Engineer of defects and deficiencies
found in the work and instruct the contractor to correct such defects and deficiencies;
(v) ensure access and permit the City's inspectors and other authorized
representatives to inspect the construction at all times during the construction and the contractor's
one year warranty period following construction;
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(vi) review all change orders to the Phase II Construction Contract in
amount greater than $2,000.00 (or, when added to all prior change orders, exceed $31,545.98) and
submit such change orders along with the Project Engineer's recommendations to the City for review
and approval, which approval will not be unreasonably withheld or delayed; prohibit work on change
orders that the City has not approved unless required for an emergency; take appropriate steps to
insure those change orders, either singly or in accumulation with those so approved, do not increase
the construction costs by more than twenty percent (20 %);
(vii) prepare certificates of substantial completion for execution by the
construction contractor and for Project Engineer concurrence; submit to the contractor a list of
observed items requiring completion or correction;
(viii) conduct and coordinate final inspection of the Phase II Project in the
presence of the Project Engineer and the City inspector; transmit a final list of items to be completed
or repaired to the contractor; and confirm that the contractor has corrected the items to be completed
or repaired;
(ix) arrange preparation of a certificate of proj ect completion by the Project
Engineer according to contract documents and approved change orders, and submit it to the City for
review and approval of a concurrence letter; and
(x) within 30 days after final completion and acceptance of the Phase II
Project by the City, provide to the City as -built drawings for the Phase Project prepared and duly
sealed by the Project Engineer;
(xi) assign all warranties, guarantees, maintenance bonds, or like
assurances of performance to the City after final acceptance of the Phase II Project by the City; and
(xii) make timely payment to the Project Engineer and construction
contractor for work performed in accordance with the Phase 11 Construction Contract in connection
with the Phase II Project.
5. Phase III Project. The Phase III Project will be designed, engineered, and
constructed as set forth in this Section 5.
(a) Lewis to Act as Phase III Project Manager. The Phase III Developers, and
each of them, hereby designate Lewis:
(i) to serve as the Phase III Developers' Project Manager for all aspects
of the design and construction of the Phase III Project;
(ii) to act as the Phase III Developers' representative and authorized agent
for the performance of all obligations of the Phase III Developers under this Agreement, for issuance
and receipt of notices to and from the Phase III Developers under this Agreement, and for receipt of
COST SMeUNG.Wo REIMBURSEMENT AGREEMENT
Page 9 Settlers Park
TC126013957.16/7 -16-01
all reimbursement payments due from the City under this Agreement and for proper distribution of
same.
(b) Design and Engineering of Phase III Proiect. Lewis has engaged the services
of Baker Aiklen to design and engineer the Phase III Subphase A Project and the Phase III Subphase
B Project and to prepare the construction plans for the Phase 1II Subphase A Project (the "Phase III
Subphase A Plans ") and the construction plans for the Phase III Subphase B Project (the "Phase III
Subphase B Plans "). Horton has engaged the services of Jones to design and engineer the Phase III
Subphase C Project and to prepare the construction plans for the Phase 1II Subphase C Project (the
"Phase III Subphase CPlans ", and collectively with the Phase III Subphase A Plans and the Phase
III Subphase B Plans, the "Phase III Plans ").
(c) Acquisition of Right-of-Way., The City agrees to expedite and complete the
acquisition of any additional right -of -way and/or easements for the Phase III Project as soon as
possible. The costs and expenses associated with such right -of -way acquisition (other than sums
actually paid to landowners for acquisition of property or easement rights, but including S54,1 87.20
in related costs allocated to Phase III) shall be paid for initially as follows: Lewis shall pay for the
costs of surveys, appraisals, and similar costs (the `.Phase 11I Condemnation Soft Costs ").
(d) Phase III Construction Contract. Lewis will obtain bids from qualified
contractors acceptable to the City for the Phase III Project and submit the bids to the other Phase III
Developers for their review and approval together with a recommendation of which bid should be
accepted. Within fifteen (15) days after submittal of the bids to the other Phase III Developers, the
Phase III Developers shall grant their approval for the recommended bid or provide written notice
to Lewis of their objection to the recommended bid and stating with specificity their reason for
objection to such bid and recommending which bid should be accepted. If Leviis determines, in his
reasonable business judgment, that another Phase III Developer has a valid objection to the
recommended bid, then Lewis may either propose the alternate recommended bid to the other Phase
DI Developers, for their approval, or may reject the alternate recommended bid and proceed to
contract with its original recommendation. However, if more than a majority of the Phase III
Developers (based on LUEs) object to the recommended bid, then Lewis will either proceed to
contract with the contractor who is the alternate recommendation of a majority of the Developers
(based on LUEs) or, if there is no majority, re -bid the Phase III Project. If the Phase III Developers
cannot thereafter agree on a contractor and its bid, then Lewis is authorized to accept what he
believes to be the best contractor and bid for the Phase III Project, provided that such bid is not
materially greater than the amount budgeted for the Phase III Project ($676,874.00).
(e) Commencement of Construction. After the City's approval of the Phase III
Plans, completion of any additional right - of - way acquisition, and execution of construction contract
with the contractor determined under 5(d) above, Lewis will commence and diligently prosecute the
construction of the Phase III Project.
(f) Lewis's Responsibilities. During the course of construction of the Phase III
Project, Lewis, as Phase III Project Manager, will:
COST SEARING AND REIMBURSEMENT AGREEMENT Page 10
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TCT2608957.16 7 -16-0 I
(i) monitor activities of the construction contractor and the progress of
construction of the Phase III Project to encourage the timely and efficient completion of the Phase
III Project following the approved Phase III Plans and construction schedule, subject to force
majeure;
(ii) review inspection reports, conduct field inspections, and coordinate
with approved inspectors and the contractor to cure defects and deficiencies in the construction
before final acceptance;
(iii) arrange and observe with the contractor all acceptance testing and
notify the City and the Project Engineer of the conduct of the same;
(iv) notify the City and the Project Engineer of defects and deficiencies
found in the work and instruct the contractor to correct such defects and deficiencies;
(v) ensure access and permit the City's inspectors and other authorized
representatives to inspect the construction at all times during the construction and the contractor's
one year warranty period following construction;
(vi) review all change orders to the Phase III Construction Contract in
amount greater than $2,000.00 (or, when added to all prior change orders, exceed five percent (5 %)
of the final Phase III Construction Contract amount) and submit such change orders along with the
Project Engineer's recommendations to the City for review and approval, which approval will not
be unreasonably withheld or delayed; prohibit work on change orders that the City has not approved
unless required for an emergency; take appropriate steps to insure those change orders, either singly
or in accumulation with those so approved, do not increase the construction costs by more than
twenty percent (20%);
(vii) prepare certificates of substantial completion for execution by the
construction contractor and for Project Engineer concurrence; submit to the contractor a list of
observed items requiring completion or correction;
(viii) conduct and coordinate final inspection of the Phase III Project in the
presence of the Project Engineer and the City inspector; transmit a final list of items to be completed
or repaired to the contractor; and confirm that the contractor has corrected the items to be completed
or repaired;
(ix) arrange preparation of a certificate of proj ect completion by the Project
Engineer according to contract documents and approved change orders, and submit it to the City for
review and approval of a concurrence letter; and
(x) within 30 days after final completion and acceptance of the Phase III
Project by the City, provide to the City as -built drawings for each subphase of the Phase 111 Project
prepared and duly sealed by the Project Engineer;
COST SHARING AND RaIMBGRSEM ENT AGREEMENT
Page I I Settlers Park
TCr2608957.16R -16-01
(xi) assign all warranties, guarantees, maintenance bonds, or like
assurances of performance to the City after final acceptance of each subphase of the Phase III Project
by the City; and
(xii) make timely payment to the Project Engineer and construction
contractor for work performed in accordance with the Phase III Construction Contract in connection
with the Phase DT Project.
6. City Agreements. In addition to the covenants and agreements by the City set forth
in other provisions of this Agreement, the City covenants and agrees as follows:
(a) Expedited Review. The City agrees to expedite the review of all Plans
submitted for the Projects.
(b) Building Permits in Ryan's Crossing. The City agrees that it will issue
building permits to Continental for the construction of houses in the Ryan's Crossing Property
pending completion of the Phase II Project as set forth in this Section 6(b); provided, however, until
completion and acceptance of the Phase 11 Project, the City may, in its reasonable discretion,
withhold the issuance of any certificates of occupancy for any additional homes in the Ryan's
Crossing Property, and Continental covenants and agrees that no additional homes in the Ryan's
Crossing Property will be occupied until the City's issuance ofa certificate of occupancy by the City
for a home. Upon execution of this Agreement by Continental, the City will issue up to twenty-five
(25) building permits for houses in the Ryan's Crossing Property (such permits being in addition to
the 25 released on June 15, 2001 and the 25 released on June 28, 2001). Upon execution of this
Agreement by the other Developers, the City will issue up to an additional twenty-five (25) building
permits for houses in the Ryan's Crossing Property. Upon execution of this Agreement by the City,
the City will issue up to seventy-five (75) building permits for houses in the Ryan's Crossing
Property.
(c) Permits and CO's after Completion of Phase II Proiect. The City agrees that
upon completion and acceptance of the Phase II Project, the City will no longer withhold building
permits for the Ryan's Crossing Property and will issue certificates of occupancy for homes in the
Ryan's Crossing Property and that no building permits or certificates of occupancy will be withheld
or delayed for homes in the Ryan's Crossing Property based on the construction status of the Phase
III Project.
(d) Waiver of Oversize Fee. The City agrees that the $150.00 per LUE of the
water oversize fee which would otherwise be paid by the Developers at the time of final platting of
any portion of their property covered by this Agreement is hereby waived, pursuant to Section 8.611
of the City Code.
CAST SHAWN° AND REIMBURSEMENT AGREEMENT
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TC1/2606957. 1617 -16.01
7. Funding and Reimbursement of Phase II Proiect Costs.
(a) Estimated Phase II Project Costs. The City and the Phase II Developers have
estimated the total cost for the Phase 11 Project (construction, engineering, Phase II Condemnation
Soft Costs, and other costs) to be $826,363.55.
(b) Phase II Developers' Agreement to Fund Design and Construction of Phase
II Project. Subject to reimbursement by the City of thirty percent (30 %) of Costs of the Phase II _
Project in accordance with the provisions of this Agreement, the Phase 11 Developers agree to fund
and timely pay all costs associated with the engineering, design, construction, financing, accounting,
project management, inspection, legal services and other costs associated with the completion of the
Phase II Project in accordance with this Agreement. The Phase II Developers agree that the Phase
II Project Manager may withdraw funds from the Phase II Escrow Account to pay Costs associated
with the Phase II Project upon submission to the Escrow Agent of a draw request certified by the
Project Engineer. Upon completion and acceptance by the City of the Phase II Project, the Phase II
Project Manager may withdraw from the Escrow Phase II Account funds to reimburse the Phase 11
Project Manager for other costs associated with the Phase II Project, including costs associated with
right -of -way and easement acquisition (the Phase II Condemnation Soft Costs), engineering costs,
and other direct costs for the Phase II Project; provided, however, at least ten (10) days prier to any
such request for reimbursement from the Phase II Escrow Account, the Phase 11 Project Manager will
submit to the City and other Phase 11 Developers a detailed statement of all Costs for which the
Phase II Project Manager is requesting reimbursement.
(c) Report of Phase II Project Costs Required. Within thirty (30) days of the
City's written final acceptance of the Phase If Project, the Phase 11 Project Manager will submit a
written report to the City of the total Costs incurred by Phase II Developers for the Phase 11 Project
that includes supporting information documenting all amounts paid for which reimbursement is
claimed and verifying that the Phase II Project Manager has complied with the requirements of this
Agreement in the construction of that Phase II Project. If the City determines that the report is, in
any material way, incomplete or otherwise insufficient to determine and verify the actual Costs, the
Phase 11 Developers will provide all additional information reasonably required by the City to
determine and verify the Costs claimed for reimbursement.
(d) City's Agreement to Reimburse the Phase II Developers. Subject to proper
completion of construction by the Phase II Project Manager of the Phase II Project and final
acceptance thereof by the City, the City agrees to reimburse the Phase II Developers for thirty percent
(30 %) of the Costs of the Phase II Project, including change orders for the Phase II Project approved
by the City (which approval will not be unreasonably conditioned, delayed, or withheld) (the "Phase
II Reimbursement Amount"). If the Phase 11 Reimbursement Amount is greater than the City's Phase
II Deposit, then the Phase II Develop ers agree that the difference between the City's Phase II Deposit
and the Phase 11 Reimbursement Amount will be deposited in the Escrow Phase II Account.
(e) Payment or Refund of Reimbursement. Within thirty (30) days after
verification of the Phase II Project's Costs, the City will fund and deposit into the Phase II Escrow
Account any additional sums owing in order for the full Phase II Reimbursement Amount to be paid
COST SNARING AND REIMBURSEMENT AGREEMENT Page 13
Settlers Park
TC12608957.16(7.16-01
COST SHARING AND REIMBURSEMENT AGREEMENT
to the Phase 11 Developers. If the Phase II Reimbursement Amount is less than the City's Phase 11
Deposit, then the amount of such difference shall be refunded to the City. In no event whatsoever
shall the amount paid by the City for the Phase II Project exceed thirty percent (30 %) of the
total Costs of the Phase 11 Project. The obligation of the City to make cost reimbursement
payments under this Agreement does not constitute a general obligation or indebtedness of the City
for which the City is obligated to levy, pledge or collect any form of taxation.
8. Funding and Reimbursement of Phase III Project Costs.
(a) Estimated Phase III Proiect Costs; Agreed Limits for City Cost
Reimbursement to Developers. The City and the Phase III Developers have estimated the total cost
for the Phase III Project (construction, engineering, Phase III Condemnation Soft Costs, and other
costs) to be $864,198.32.
(b) Phase III Developers Agreement to Fund Design and Construction of Phase
III Project. Subject to reimbursement by the City of thirty percent (30 %) of Costs of the Phase 111
Project in accordance with the provisions of this Agreement, the Phase III Developers agree to fund
and timely pay all costs associated with the engineering, design, construction, financing, accounting,
project management, inspection, legal services and other costs associated with the completion of the
Phase III Project in accordance with this Agreement. The Phase lII Developers agree that the Phase
III Project Manager may withdraw funds from the Phase III Escrow Account to pay Costs associated
with the Phase III Project upon submission to the Escrow Agent of a draw request certified by the
Project Engineer. Upon completion and acceptance by the City of the Phase III Project, the Phase
III Project Manager and Horton may withdraw from the Phase III Escrow Account funds (pro rata
based upon their Phase III Project Contributions) to reimburse themselves for other costs associated
with the Phase 1II Project, including engineering costs and other direct costs for the Phase lII Project
(including any Phase III Condemnation Soft Costs) incurred prior to the execution of this Agreement;
provided, however, at least ten (10) days prior to any such request for reimbursement from the Phase
III Escrow Account, the Phase III Project Manager and Horton will submit to the City and other
Phase III Developers a detailed statement of all Costs for which they are requesting reimbursement.
(c) Report of Phase III Proiect Costs Required. Within thirty (30) days of the
City's written final acceptance of the Phase III Project, the Phase III Project Manager will submit a
written report to the City of the total Costs incurred by Phase III Developers for the Phase III Project
that includes supporting information documenting all amounts paid for which reimbursement is
claimed and verifying that the Phase III Project Manager has complied with the requirements of this
Agreement in the construction of that Phase III Project. If the City determines that the report is, in
any material way, incomplete or otherwise insufficient to determine and verify the actual Costs, the
Phase 111 Developers will provide all additional information reasonably required by the City to
determine and verify the Costs claimed for reimbursement.
(d) Citv's Agreement to Reimburse the Phase III Developers. Subject to proper
completion of construction by the Phase III Project Manager of the Phase III Project and final
acceptance thereof by the City, the City agrees to reimburse the Phase III Developers for thirty
percent (30 %) of the Costs of the Phase III Project, including change orders for the Phase 111 Project
Page 14 Smkrs Paris
TC112609957.16J7 -16-01
approved by the City (which approval will not be unreasonably conditioned, delayed, or withheld)
(the "Phase III Reimbursement Amount"). If the Phase III Reimbursement Amount is greater than
the City's Phase III Deposit, then the Phase III Developers agree that the difference between the
City's Phase III Deposit and the Phase III Reimbursement Amount will be deposited in the Phase III
Escrow Account.
(e) Payment or Refund of Reimbursement. Within thirty (30) days after
verification of the Phase III Project's Costs, the City will fund and deposit into the Phase III Escrow
Account any additional sums owing in order for the full Phase III Reimbursement Amount to be paid
to the Phase DI Developers. If the Phase 111 Reimbursement Amount is less than the City's Phase
III Deposit, then the amount of such difference shall be refunded to the City. In no event
whatsoever shall the amount paid by the City for the Phase III Project exceed thirty percent
(30 %) of the total Costs of the Phase III Project. The obligation of the City to make cost
reimbursement payments under this Agreement does not constitute a general obligation or
indebtedness of the City for which the City is obligated to levy, pledge or collect any form of
taxation.
9. Construction Shortfalls: Excess Funds. If during the course of construction there
are insufficient funds in the applicable Escrow Account to pay for the Costs of construction of either
Project, then (i) the applicable Developers shall deposit, pro rata based upon the applicable Project
Allocation, into the applicable Escrow Account to pay for such Costs, or (ii) any Developer may
elect to fund such construction shortfalls (any such funding, and "Advance "). The Project Manager
shall, in cooperation with the Escrow Agent, keep accounts of any Advances made by any Developer
in excess of such Developer's Project Contribution. Advances made by the Developers, or any one
or more of the Developers, during the course of a Project shall be reimbursed to such Developer or
Developers from the reimbursement made by the City and from the other Developers of that Phase
who did not participate in the Advance, in such Developer's applicable project allocation. If any one
or more Developers makes Advances to cover any construction shortfalls, then the Developers
making such Advance shall be reimbursed pro rata from the Phase II Reimbursement Amount and/or
Phase III Reimbursement Amount, as applicable, prior to disbursement of the applicable
reimbursement to the other Developers. Hailer receipt of the Phase II Reimbursement Amount and
payment of all Costs associated with the Phase 11 Project there are funds remaining in the Escrow
Account attributable to the Phase II Project (i.e., funds from Phase II Project Contributions and the
Phase II Reimburs ement Amount [including the City's Phase II Deposit]), those remaining funds will
be distributed pro rata to the Phase II Developers based upon their respective contributions to the
Phase II Escrow Account for the Phase 11 Project. If after receipt of the Phase DI Reimbursement
Amount and payment of all Costs associated with the Projects there are funds remaining in the Phase
III Escrow Account attributable to the Phase 111 Project (i.e., funds from Phase III Project
Contributions and the Phase III Reimbursement Amount [including the City's Phase III Deposit]),
those remaining funds will be distributed pro rata to the Phase III Developers based upon their
respective contributions to the Phase III Escrow Account for the Phase III Project.
10. Ownership of Facilities. From and after the time of final completion of each Project
by Developers and City's final acceptance of same, the City will own, operate, and maintain that
COST SHARING AND REIMBURSEMENT AGREEMENT
Page 15 Settlers Park
TCT72608957.16/7 -I6-0I
Project so accepted and the City shall be responsible for all costs associated with the ownership,
operation and maintenance of same.
(a) Within thirty (30) days after the time of the completion and final acceptance
of each Project, the Developers agree to execute and deliver to the City such bills of sale,
assignments, or other instruments of transfer requested by the City, in a form and content acceptable
to the Director and the City Attorney, to evidence the City's ownership of same. Within said 30 -day
period, the Developers will also deliver to the City all bonds, warranties, guarantees and other
assurances of performance, record drawings, easements, project manuals and all other documentation
related to that Project that is within the custody and control of Developers.
(b) The Developers will make timely payment to its engineers and contractors for
all aspects of the work and for all materials and services relating to each Project including, without
limitation, all costs for engineering, design, construction (including inspection fees), project
management, financing, interest, fiscal security, and all other costs for labor, materials and services
relating to the Project. The Developers will not cause, suffer, or permit the filing, perfection, or
execution of any lien or other encumbrance against either Project or any portion thereof. Nothing
in this section prohibits the Developers from withholding payment for any work that the Developers,
as project manager, deems defective or unacceptable. In that event, the Developers have the right
to withhold payment even if, in the exercise of that right, a lien or other encumbrance is perfected
against the respective Project. If any lien or other encumbrance is filed against such Project, or any
portion thereof, due to work performed or materials furnished by or at the request of the Developers,
the Developers will cause the same to be fully discharged and released of record by payment,
deposit, bond, or order ofa court of competent jurisdiction or otherwise. The Developers will secure
the release of the lien or other encumbrance within ninety (90) days after the filing or perfection
thereof, unless the parties mutually agree in writing to additional time. The Developers agree that
the City will not accept any improvement burdened by any lien or other encumbrance.
11. Provision of Water Service from the Protects. The parties agree that, from and
after final acceptance of each Project (or applicable phase thereof) by the City, the City will provide
utility service to customers within the Property subject to the conditions stated in this Agreement and
the City's policies and ordinances, as amended.
12. Unreimbursed Easement Costs. Continental has paid the costs associated with the
acquisition from Wallin and Cameo ofa right -of -way easement for the benefit of the Projects, being
the Unreimbursed Easement Costs. The Developers shall share in the Unreimbursed Easement Costs
in accordance with their respective share of the Projects, as set forth below. The City shall not be
obligated to reimburse the Developers for the Unreimbursed Easement Costs.
The Phase II Developers shall pay 48.88% of the Unreimbursed Easement Costs,
shared among them in accordance with the Phase II Project Allocations. The Phase 111 Developers
shall pay 51.12% of the Unreimbursed Easement Costs, shared among them in accordance with their
Phase 111 Project Allocations.
COST SHARING AND REIMBURSEMENT AGREEMENT
Page 16 Settlers Park
TCT/2608957.16/7 -16-01
Because Continental has already paid the Unreimbursed Easement Costs, the other
Developers shall pay directly to Continental their applicable share of the Unreimbursed Easement
Costs within thirty (30) days after the date of this Agreement.
13. Default; Cure; Remedies.
(a) Default in Payment. If any party defaults in the payment of any sum owed
hereunder (the "Defaulting Party"), and such default continues for a period of fifteen (15) days after
notice by any non - defaulting party to the Defaulting Party, then the Defaulting Party shall be deemed
in default under this Agreement.
(b) Right to Cure. Any non - defaulting party may cure a default by a Defaulting
Party. If any party to this Agreement cures a default by another party hereto, then the party which
cures the default shall be entitled to reimbursement from the Defaulting Party as provided herein.
If a party cures a default, and if the Costs which the Defaulting Party failed to pay are then or at
anytime in the future subject to reimbursement under any agreement or contract among or between
the parties hereto or any of the parties hereto and a third party, then the party which cured such
default shall be entitled to the Defaulting Party's share of any such reimbursement.
(c) Liability of Defaulting Party. All sums owed by a Defaulting Party under this
Agreement shall thereafter bear interest at the lesser of twelve percent (12 %) per annum or the
maximum rate allowed by law. A Defaulting Party shall be liable for all reasonable attorneys fees
incurred by any one or more of the parties to this Agreement which such other party or parties may
incur in collecting any sums owed by a Defaulting Party.
(d) Default with respect to Proiects. If either Project Manager defaults in the
construction of its portion of the Project, and if after notice by the City or any Developer of such
default to the defaulting Project Manager it fails to cure such default within twenty (20) days after
such notice, then within the period of time conunencing on the date of the default notice and ending
forty -five (45) days thereafter, if another Developer does not assume the responsibilities of the
Project Manager and cure such default and proceed with the prosecution of construction of such
Project, then the City may deem the Developers in default hereunder and assume responsibility for
construction of that Project. If another Developer or the City assumes the role of Project Manager
with respect to a Project, then such Developer or the City shall have the right to withdraw funds from
the applicable Escrow Account to complete construction of that Project, following the procedures
of this Agreement.
14. No Partnership. The Developers are not partners orjoint venturers. This Agreement
will not be construed in any form or manner to establish a partnership, joint venture or agency,
express or implied, nor any employer - employee or borrowed servant relationship by and among the
parties, or any two or more of them.
15. Covenant of Cooperation; Easements. The Developers agree to cooperate with
each other in good faith with respect to the construction of the Projects. Each Developer agrees that
if any easement on such Developer's land is need for either of the Projects, then such Developer will
COST SHARING AND REIMBURSEMENT AGREEMENT Page 17
Settlers Park
TCT/2608957.16r7 -16-0 I
donate such easement for the Project at no charge to the other Developers or the City, provided that
such easement does not materially and unreasonably interfere with such Developer's intended use
of its property.
16. Notice. All notices, demands and requests which may be given or which are required
to be given by either party to the other, and any exercise of a right of termination provided by this
Contract, shall be in writing and shall be deemed effective when: (i) personally delivered to the
intended recipient; (ii) sent, by certified or registered mail, return receipt requested, addressed to the
intended recipient at the address specified below; (iii) delivered in person to the address set forth
below for the party to whom the notice was given; (iv) deposited into the custody of a recognized
overnight delivery service such as Federal Express Corporation, Emery, or Lone Star Overnight,
addressed to such party at the address specified below; or (v) sent by facsimile, telegram or telex,
provided that receipt for such facsimile, telegram or telex is verified by the sender and followed by
a notice sent in accordance with one of the other provisions set forth above. For purposes of this
Section 15, the addresses of the parties for all notices are as follows (unless changed by similar
notice in writing given by the particular person whose address is to be changed):
If to Continental: Continental Homes of Texas, L.P.
Attn: Mr. Terry Mitchell
12554 Riata Vista Circle, Second Floor
Austin, Texas 78727
Phone: 512.345.4663; Fax: 512.345.6080
E -mail: titchell@milbumhomes.com
With copy to: Timothy C. Taylor, Esq.
Jackson Walker L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701 -4099
Phone: 512.236.2390; Fax: 512.236.2002
E -mail: ttaylor@jw.com
If to Horton:
COST SHARING AND RE MBURSEMENr AGREEMENT
D.R. Horton- Texas, Ltd.
Attn: Mr. Larry Jessen
12554 Riata Vista Circle, Second Floor
Austin, Texas 78727
Phone: 512.533.1540; Fax: 512.218.4299
E -mail: ljessen@drhorton.com
If to Rainbow: Texas Rainbow Company
Attn:
Phone: ; Fax:
E -mail:
Page 18 Settlers Pork
TCT72608957.1617 -16-0
•
If to Lewis: John C. Lewis
1414 West 6'' Street, Suite 390
Austin, Texas 78701
Phone: 512.476.7011; Fax: 512.476.7070
E -mail: lewis @austin.rr.com
If to Nassour: Mr. Jimmy Nassour
1200 San Antonio Street
Austin, Texas 78701
Phone: 512.474.2900; Fax: 512.474.4547
If to Dillard: Robert W. Dillard
209 West Bagdad
Round Rock, Texas 78664
Phone: 512.244.0196; Fax: 512.244.9661
E -mailer diIfarr1tn ( Ao fn+ar /. [eµ+
Zu u. /o. Cony
If to REG: REG Enterprises, Inc.
Attn: Mr. Bob Gilfrllan
10313 Grand Oak Circle
Austin, Texas 78759
Phone: 512.250.8638; Fax: 512.250.5194
E -mail:
If to the City: City of Round Rock
Attn: Mr. Jim Nuse
With copy to:
17. Miscellaneous.
Phone: ; Fan:
E -mail:
Steve Sheets, Esq.
Sheets & Crossfield, L.L.P.
309 East Main Street
Round Rock, Texas 78644
Phone: 512.255.8877; Fax: 512.255.8986
E -mail: ssheets @sheets- crossfreld.com
(a) Force Maieure. If, by reasons of Force Majeure, any party will be rendered
wholly or partially unable to carry out its obligations under this Agreement after its effective date,
then such party will give written notice of the particulars of such Force Majeure to the other party
or parties within a reasonable time after the occurrence of it. They will suspend the obligations of
the party giving such notice, to the extent affected by such Force Majeure, during the continuance
COST SHARING AND REIMBURSEMENT AGREEMENT Page 19
o r
Settlers Park
TCT2608957.162.16-01
of the inability claimed and for no longer period, and any such party will in good faith exercise its
best efforts to remove and overcome such inability. The term "Force Majeure" as utilized in this
Agreement will mean and refer to acts of God; strikes, lockouts or other industrial disturbances; acts
of public enemies; orders of any kind of the government of the United States, the State of Texas, or
any other civil or military authority; insurrections; riots; epidemics; landslides; earthquakes;
lightning; fires; hurricanes; storms; floods; washouts; other natural disasters; arrests; restraint of
government and people; civil disturbances; explosions; breakage or accidents to machinery, pipelines
or canals; or other causes not reasonably within the control of the party claiming such inability.
(b) Venue. Venue for any suit arising under this Agreement will be in
Williamson County, Texas.
(c) Assignment. No party may assign its rights and obligations under this
Agreement without the prior written consent of the other parties, which consent shall not be
unreasonably withheld, conditioned, or delayed.
(d) Texas Law to Apply. THIS AGREEMENT SHALL BE CONSTRUED UNDER AND
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AND ALL OBLIGATIONS OF THE PARTIES
CREATED BY THE CONTRACT ARE PERFORMABLE IN WILLIAMSON COUNTY, TEXAS.
(e) Parties Bound. This Agreement shall be binding upon and inure to the benefit
of the parties to this Agreement and their respective heirs, executors, administrators, personal
representatives, legal representatives, successors and assigns, subject to the provisions of Section 8.2.
(t) Legal Construction. In case any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect any other provision of the Contract, and
this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never
been contained in the Contract.
(g) Gender. Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words in the singular number shall be held to include the
plural, and vice versa, unless the context requires otherwise.
(h) Multiple Counterparts. This Agreement may be executed in a number of
identical counterparts which, taken together, shall constitute collectively one (1) agreement; but in
making proof of this Agreement, it shall not be necessary to produce or account for more than one
such counterpart.
COST SHARING AND REIMBURSEMENT AGREEMENT
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Page 20 Settlers Park
• TCT/2608957.16/7 -16-01
EXECUTED to be effective July , 2001.
COST SHARMG AND REIMBURSEMENT AGREEMENT
CONTINENTAL:
Continental Homes of Texas, L. P.
(a Texas limited partnership)
By: CHTEX of Texas, Inc.
(a Delaware corporation)
Its General Partner
HORTON:
D. R. Horton- Texas, Ltd.
(a Texas limited partnership)
By: D. R. Horton, Inc.
(a Delaware corporation)
Its General Partner
RAINBOW:
Texas Rainbow Company
(a Texas corporation)
By:
Name:
Title:
Page 21 Settlers Park
TCr2608957.1617 -16-01
EXECUTED to be effective JJ 113c , 2001.
CONTINENTAL:
COST SHARING AND REIMBURSEMENT AGREEMENT Page 21
Continental Homes of Texas, L. P.
(a Texas limited partnership)
By: CHTEX of Texas, Inc.
(a Delaware corporation)
Its General Partner
HORTON:
By
Terry E. Mitchell, Vice President
D. R. Horton - Texas, Ltd.
(a Texas limited partnership)
By D. R. Horton, Inc.
(a Delaware corporation)
Its General Partner
RAINBOW:
Texas Rainbow Company
(a Texas corpora
By:
Name
Title
By
Name:
Title:
Settlers Park
• TCT/2608957.16/7 -16-11
COST SHARING AND REIMBURSEMENT AGREEMENT
LEWIS:
John C. Lewis
NASSOUR:
DILLARD:
REG:
V IA
. ,.� ' N sour
Robert W. Dillard
Diane W. Dillard
REG Enterprises, Inc.
(a Texas corporation)
By:
Name:
Title:
Page 22 Settlers Park
• TCT/2608967.16l7 -l6-01
COST SHARING AND REIMBURSEMENT AGREEMENT
LEWIS:
NASSOUR:
Jimmy Nassour
DILLARD:
Robert W. Dillard
Diane W. Dillard
REG:
REG Enterprises, Inc.
(a Texas corporation)
By:
Name:
Title:
Page 22 Settlers Park
TC112608957.16/7.16.01
LEWIS:
John C. Lewis
NASSOUR:
Jimmy Nassour
DILLARD:
COST SHARING AND REIMBURSEMENT AGREEMENT Page 22
Robert W. Dillard
.IQ(JJ
Diane W. Dillard
REG:
REG Enterprises, Inc.
(a Texas corporation)
By:
Name:
Title:
Settlers Park
'TC 12608957.16/7 -16-01
LEWIS:
John C. Lewis
NASSOUR:
Jimmy Nassour
DILLARD:
REG:
COST SHARING AND REIMBURSEMENT AGREEMENT Page 22
Robert W. Dillard
Diane W. Dillard
REG Enterprises, Inc.
(a Texas corporation)
By: i . _
Name: f, - . ��r�
Title:
Settlers Park
TCT2608957.I6/7 -16-01
COST SHARING AND REIMBURSEMENT AGREEMENT
THE CrrY:
City of Round Rock
Title: /17A c €.
ID- a -01
Page 23 Settlers Park
TCr2811778.1/7-26 -01
FIRST AMENDMENT TO
COST SHARING AND REIMBURSEMENT AGREEMENT
THIS FIRST AMENDMENT TO COST SHARING AND REIMBURSEMENT AGREEMENT (this
"Amendment ") is executed to be effective the 7 day of September, 2001, by and among Continental
Homes of Texas, L.P., a Texas limited partnership doing business as Milburn Homes
( "ContinentaP'), D.R. Horton- Texas, Ltd., a Texas limited partnership ( "Horton "), Texas Rainbow
Company, a Texas corporation ( "Rainbow "), John C. Lewis ( "Lewis ") and Jimmy Nassour
( "Nassour "), Robert W. Dillard and Diane W. Dillard ( "Dillard "), REG Enterprises, Inc., a
Texas corporation ( "REG"), and The City of Round Rock, a Texas municipal corporation (the
"City ").
RECITALS:
A. Continental, Horton, Rainbow, Lewis and Nassour, Dillard, and REG (collectively,
together with their respective heirs, successors, and assigns, the "Developers ") and the City entered
into that certain Cost Sharing and Reimbursement Agreement (the `Agreement") pursuant to which
(i) two certain waterline projects will be constructed to benefit property owned by the Developers
and (ii) the City will reimburse the Developers up to 30% of the costs associated with such waterline
projects, all as more fully set forth in and subject to the terms and conditions of the Agreement.
B. All terms used in this Amendment and not otherwise defined herein shall have the
same meaning given such terms in the Agreement, reference to which is hereby made for all
purposes.
C. The Developers and the City desire to amend and clarify certain terms of the
Agreement.
Now, THEREFORE, for good and valuable consideration, and in consideration of the mutual
covenants and benefits herein contained, Continental, Horton, Rainbow, Lewis, Nassour, REG, and
the City covenant and agree as follows:
1. Additional LUEs and Transfer. The Agreement is not intended to and does not
restrict the development intensity or number of water LUEs available to the Developers for the
respective properties. The Developers may transfer, sell or assign water LUEs owned by such
Developers among the various properties owned by the Developers and more particularly described
in the Agreement. The parties further agree that, capacity permitting, additional water LUEs may
be granted to any party or successor to that party upon request, subject to the ordinances of and the
usual and customary procedures of the City (the "City Requirements ").
2. Obtaining Additional LUEs. If a Developer desires to acquire additional water
LUEs for its property, the Developer shall make such request to the City in accordance with the City
Requirements. The City shall allocate or grant additional water LUEs to such Developer for use in
FIRST AMENDMENT ENT TO
COST SHARING AND REIMEU1SEMENr AGREEMENT Page 1 Settlers Pack
TCr/2811778.1/7.26.01
connection with development on such Developer's property in accordance with the City
Requirements.
3. Additional Project Contribution. If additional waterLUEsareapprovedbytheCity
for any Developer, such Developer shall notify the Project Managers. The Project Managers shall
recalculate the Project Contributions for each Project taking into consideration the change in the total
number of LUEs allocated to the properties of the Developers. Within 60 days adds recalculation,
the requesting party may obtain rights to the additional LUEs by depositing in the applicable escrow
account an amount equal to the difference between its initial contribution and its recalculated
contribution. The Project Manager shall refund the deposited amount to the nonrequesting parties
in accordance with the recalculated pro -rata contribution requirements.
4. Miscellaneous.
(a) Texas Law to Apply. THIS AMENDMENT SHALL BE CONSTRUED UNDER AND
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AND ALL OBLIGATIONS OF THE PARTIES
CREATED BY THE AGREEMENT AND THIS AMENDMENT ARE PERFORMABLE IN WILLIAMSON COUNTY,
TEXAS.
(b) Parties Bound. This Agreement shall be binding upon and inure to the benefit
of the parties to this Agreement and their respective heirs, executors, administrators, personal
representatives, legal representatives, successors and assigns.
(c) Legal Construction. In case any one or more of the provisions contained in
this Amendment or the Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, orunenforceability shall not affect any other
provision of this Agreement or the Agreement, and this Amendment and the Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been contained in this
Amendment.
(d) Gender. Words of any gender used in this Amendment shall be held and
construed to include any other gender, and words in the singular number shall be held to include the
plural, and vice versa, unless the context requires otherwise.
(e) Multiple Counterparts. This Amendment may be executed in a number of
identical counterparts which, taken together, shall constitute collectively one (1) agreement; but in
making proof of this Amendment, it shall not be necessary to produce or account for more than one
such counterpart.
FIRST AMENDMENT TO
COST SHARING AND REIMBURSEMENT AGREEM ENr
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Page 2 Settlers Park
TGT/2811778.117- 26-01.
EXECUTED to be effective September , 2001.
FIRST AMENDMENT TO
COST SHARR4G AND REIMBURSEMENT AGREEMENT
CONTINENTAL:
Continental Homes of Texas, L. P.
(a Texas limited partnership)
By: CHTEX of Texas, Inc.
(a Delaware corporation)
Its General Partner
HORTON:
D. R. Horton- Texas, Ltd.
(a Texas limited partnership)
By: D. R. Horton, Inc.
(a Delaware corporation)
Its General Partner
RAINBOW:
hell, Vice President
By:
Name:
Title:
Texas Rainbow Company
(a Texas corporation)
By:
Name:
Title:
Page 3 Settlers Park
SEP -10 72001 NON 09 19 All
$EP -07 -01 FRI 02 :40 PM
TC 172111776.1 % -26.01
EXECUTED to be effective Sept Tber , 2001.
FIRSTAMENDMENTTO
Cos rSHARING AND RlIM9uRSEMENCAORSEMwNr
CONTINENTAL:
Continental Homes of Texas, L. P.
(a Texas limited partnership)
By; CHTEX of Texas, Inc.
(a Delaware corporation)
Its General Partner
MORTON:
By:
E w:
FAX NO.
FAX NO.
Terry E. Mitchell, Vice President
D. R. Horton - Texas, Ltd.
(a Texas limited partnership)
By: D. R. Horton, Inc.
(a Delaware corporation)
Its General Partner
Texas Rainbow Company
(a Texas corporation)
By:
Name:
Title:
Page 3 Settler: Park
P. 02
P, 04/06
09/10/2001 MON 09:24 FT% /R% NO 5320] 0002
. TCT/2811778.1f7 -26 -0i
EXECUTED to be effective
y
2001.
CONTINENTAL:
Continental Homes of Texas, L. P.
(a Texas limited partnership)
By: CHTEX of Texas, Inc.
(a Delaware corporation)
Its General Partner
HORTON:
D. R. Horton- Texas, Ltd.
(a Texas limited partnership)
By: D. R. Horton, Inc.
(a Delaware corporation)
Its General Partner
RAINBOW:
Texas Rainbow Company
(a Texas corporati
FIRST AMENDMENT TO
COST SNARING AND REIMBURSEMENT AGREEMENT Page 3
By:
Terry E. Mitchell, Vice President
By:
Name:
Title:
Settlers Park
•
arrt by 65g',1117,131 02:50PM KREISNER/NASSOLF25 6598; 09/06/2001 19:53; 0602; FP.2/2/2
- . 7 40c.tv..= 0/ ei1001 ..=00034w0.-0..44e5ov4.4.44; w70v; P.O. V
00/00/01 Its:p6 FAX 512 479 5079 SAGE LAND COMPANY INC
07/20/2001 111:62 FAX 6122362002 JACVJON WALKER LLP
7=0.1"/71
1
1
BiSiANG:04...tor
CasiSsiiasiaiscasoanigsgads
11141f01111;
Robert W. Dillard
Diane W. Dillard.
IhSO4
132M;
•
REG Enterprises, Inc.
(a Texas corporation)
ta, 002
1Z1005101)
By
Name 1
Ti
Danko' Pahc
09/07/2001 FRI 14:56 [TIM NO 5258] U002
TCT /28I 1778.1/7-x6-01
FIRST AMENDMENT TO
COST SHARING AND REIMBURSEMENT AGREEMENT
LEWIS:
John C. Lewis
NASSOUR:
Jimmy Nassour
DILLARD:
l/�d141f it/ LCJ J/
n
Robert W. Dillard
Diane W. Dillard
REG:
REG Enterprises, Inc.
(a Texas corporation)
By:
Name:
Title:
Page 4 Settlers Park
Sep 11 01 04: 29p Gilfillan
• DCY - U1 lUt Oq'. 1( Yfl, ,
TCP/281(771i.1n•26 -01
FM ST
CWT &W ail: AND IirJNM1VRSRMENT AGI EWENT
_FM{ NO. •
LEWIS:
John C. Lewis
fiIA SSOUR:
Jinany Nassour
DIC1.ARD:
Robert W. Dillard
Diane W. Dillard
liEG:
REG Enterprises, Inc.
(a Texas corporation)
Page 4
(5121 250 -5194 p.2
Sctdc¢Pmk
P. 02
09/11/2001 TUE 16:30 [TX /RX NO 5440] e002
DATE: October 19, 2001
SUBJECT: City Council Meeting - October 25, 2001
ITEM: 9.F.7. Consider a resolution authorizing the Mayor to execute a Cost
Sharing and Reimbursement Agreement with Continental Homes of
Texas, L.P., D.R Horton - Texas, Ltd, Texas Rainbow Company,
John C Lewis, Jimmy Nassour, Robert W. Dillard and Diane W.
.Dillard, and REG Enterprises, Inc. for water system improvements.
This is a cost sharing agreement between the developers of property in
the Northeast portion of the City. The developers will pay 70% of the
costs and City will pay 30 %.
Resource: Jim Nuse, Public Works Director
History: This is a cost sharing agreement between the developers of property in the Northeast
portion of Round Rock and the City. The developers will pay 70% of the costs and
the City will pay 30 %.
Funding:
Cost: City portion is $383,790
Source of funds: Utility Fund
4 . •
Outside Resources: Continental Homes of Texas, L.P., D.R. Horton - Texas, Ltd., Texas
Rainbow Company, John C. Lewis, Jimmy Nassour, Robert W. Dillard
and Diane W. Dillard, and REG Enterprises, Inc. for water system
improvements.
Impact/Benefit: This provides utility service to property for added tax base.
Public Comment: N/A
Sponsor: N/A
ATTORNEYS.& COUNSELORS
100 Congress Avenue, Suite 1100
Austin, Texas 78701
(512) 236 -2000 • fax (512) 236 -2002 !/ `
wsysvjw.com JACKSON WALKER L.L.P.
Austin
Dallas
Fort Worth
Houston
Richardson
San Angelo
San Antonio
Mr. Charles Crossfield
Sheets & Crossfield, L.L.P.
309 East Main Street
Round Rock, Texas 78664 -5246
Dear Charlie:
Please find the enclosed copies of the Cost Sharing Reimbursement Agreement and the First
Amendment to the Cost Sharing Reimbursement Agreement. Please have these executed by
the City of Round Rock and return to me.
Please call me if you have any questions or comments.
TCT/2841093.1
219644 00022
Enclosure
Member of GI OBALANW"
RE: Ryan's Crossing
C: Continental Homes of Texas, L.P.
Attn: Mr. Terry Mitchell
Mr. Bill Peckham
September 20, 2001
Very truly yours,
e.
Timothy C. Taylor
Timothy C. Taylor
512.236 2390
Itatlor®Iw.com
Via Lone Star Overn:eht