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R-02-02-14-13D2 - 2/14/2002THE STATE OF TEXAS COUNTY OF WILLIAMSON * CITY OF ROUND ROCK I, CHRISTINE R. MARTINEZ, City Secretary of the City of Round Rock, Texas, do hereby certify that that I am the custodian of the public records maintained by the City and the attached is a true and correct copy of an Annexation and Development Agreement for Roadway Facilities between the City of Round Rock and Continental Homes of Texas, L.P. regarding 91.116 acres of land out of the Willis Donaho, Jr. Survey, A -173, in Williamson County, Texas. The City Council approved this agreement at their meeting on February 14, 2002 and is recorded in Book 47. CERTIFIED by my hand and seal of the City of Round Rock, Texas on this 16th day of September 2002. * * 2002071144 15 Pg City Secretary w).E. naitn CHRISTIN E R. MARTINEZ �5 '3091387.2 ANNEXATION & DEVELOPMENT AGREEMENT FOR ROADWAY FACILITIES Continental Homes of Texas, L.P., a Texas limited partnership doing business as Milburn Homes (hereinafter "Developer "), and the City of Round Rock, a Texas municipality of the County of Williamson, State of Texas, (hereinafter "the City, ") (collectively hereinafter "the Parties, ") do hereby enter into this Annexation & Development Agreement for Roadway Facilities (hereinafter the "Agreement ") for the purposes of providing for an adequate network of arterial roadways to serve the development project described herein, and providing for reimbursements for excess contributions or credits against roadway impact fees. RECITALS Whereas, Developer has pending a request for annexation of a tract of land approximately 91.116 acres in size, hereinafter "the Property," which is located in the northeast planning area of the City and for which a legal description is attached hereto as Exhibit A; and Whereas, Developer has requested SF -2 zoning (the "Requested Zoning ") for the development of the Property as single family residential (the "Project "); and Whereas, there presently are insufficient arterial roads in the vicinity of the Property to support the development of such land as contemplated by the Requested Zoning; and Whereas, it is anticipated that, in the event that annexation is approved for the Property as requested by Developer and the Property is developed, there will be significant traffic impacts on the-existing and future arterial road network generated by development of the Property; and Whereas, the City has adopted its Transportation Master Plan identifying arterial roadways needed to serve the development of the Property and other property in the northeast planning area of the City; and Whereas, the City has conducted a study of the estimated cost of constructing the needed arterial roadways serving the Property, as shown on the Transportation Master Plan, and the City has provided a copy of the Transportation Master Plan and the aforementioned study to Developer; and Whereas, Developer has requested annexation of the Property in advance of construction of the needed arterial roadways; and Whereas, in exchange for annexation of the Property in advance of the construction of the needed arterial roadways, Developer is willing to pay the Fees (as defined in Section 2 below) to partially offset the City's cost of constructing said arterial roadways; and Whereas, the Developer acknowledges that the Fees are proportional to the traffic impact anticipated from the proposed development of the Property; and ANNEXATION & DEVELOPMENT AGREEMENT Page 1 Hoyt Tract N91387.2 Whereas, the Parties are desirous of assuring that the Project is adequately served with arterial roadways in a timely manner; NOW THEN in consideration of the mutual covenants herein contained, the Parties hereby agree as follows: Section 1. Provision of Roadways and Development Schedule A. Obligation to Dedicate Land. Developer agrees to dedicate right -of -way comprising approximately 2.91 acres of land (0.69 acres for County Road 113; 0.85 acres for County Road 122 and 1.37 acres for County Road 117) in the locations shown on Exhibit B (collectively the "Roads "). The right -of -way (or applicable portion thereof) will be dedicated by Developer at the time the Property (or applicable portion thereof) is platted or when the City determines the right -of -way is needed for construction of one or more of the Roads, whichever first occurs. B. Access Roads. Developer at its sole expense and in the due course of development of the Property shall provide adequate roadway access on the Property to the City's arterial road network serving the Property, consistent with the City's subdivision standards. C. Development Schedule. Development by Developer of the annexed Property described in Exhibit A shall progress in accordance with the schedule attached hereto and incorporated by reference as Exhibit C. The land uses, numbers of dwelling units, and the timing of development set forth in Exhibit C are approximate and subject to change. D. Contributions Approximate. Specification of the dimensions and location of right -of -way for the Roads as set forth in paragraph A above is approximate and is included for purposes of estimating the credits and discounts to Fees, as provided for in section 3 of this Agreement. The precise locations and dimensions of such right -of -way shall be determined at the time of platting of the Property or final design of the Roads improvements. The City may adjust the total amount of the Fees to be paid pursuant to this Agreement to reflect the actual dimensions of the Developer's contributions of right -of -way (that is, the total number of net developable acres in the Property). Section 2. Annexation Fees A. Purpose and Basis for Fee. Developer acknowledges that the existing roadways in the vicinity of the Project and the Property are inadequate to serve the development as proposed by the Developer. In consideration for City agreeing to annex the Property and allowing the Developer to begin its Project, Developer agrees to pay fees to the City for said annexation. The obligation to pay Fees will accrue when the Property is annexed, and Fees shall be paid and calculated as set ANNEXATION & DEVELOPMENT AGREEMENT Page 2 Hoyl Tract 30913872 forth below. The annexation fees ( "Fees ") provided for herein are based upon the traffic impact anticipated from the Requested Zoning. B. Amount of Fees. In addition to dedication of right -of -way for the Roads as identified in Section 1, Developer agrees to pay to the City annexation Fees in the amount of $3,600.00 per Project Net Developable Acre. The Project, if developed in accordance with the Requested Zoning, will contain approximately 86.97 net developable acres of land being the Property, net of developable land for the right -of -way to be dedicated for Roads and 1.24 acres to be dedicated as parkland (the "Project Net Developable Acres "). The total amount of Fees ($3,600 multiplied by the number of Project Net Developable Acres), shall be payable as set forth in this Agreement. Modification of Fees. If the actual zoning of the Property is different from the Requested Zoning, then (i) the Parties agree that the annexation Fees may be recalculated to reflect any change in traffic impact as set forth in subparagraphs (1) and (2) below, or (ii) the Owner or Developer, as applicable, may request disannexation as provided in subparagraph (3) below. (1) If any such recalculation pursuant to clause (i) above results in increased Fees, then Owner and/or Developer shall have the option of paying the increased Fees or requesting disannexation of the Property, and upon disannexation, Owner or Developer (as applicable, based upon who paid the Fees) will be entitled to a refund of any Fees previously paid. (2) If any such recalculation pursuant to clause (i) above results in a reduced Fees, and if disannexation is not requested and approved pursuant to subparagraph (3) below, then Owner or Developer (as applicable, based upon who paid the Fees) shall be entitled to a refund of Fees previously paid_ (3) In the event that Owner or Developer requests disannexation because Developer does not receive the Requested Zoning and if the City does not disannex the Property, then this Agreement shall be null and void and the Parties shall have no further duties, obligations, or rights hereunder, including without limitation the obligation to dedicate right -of- way as provided in this Agreement. D. Waiver and Acknowledgment. Developer (i) unconditionally waives any claim that payment of Fees or construction of improvements pursuant to this agreement constitutes imposition of an unauthorized roadway impact fee within the meaning of Tex. Loc. Gov't Code ch. 395 or otherwise is inconsistent with such law; (ii) unconditionally acknowledge that fees provided for herein are proportional to the traffic impact anticipated from Developer's proposed development of the Property; and (iii) hereby releases and discharges the City, and all of its officials, officers, agents, consultants, and employees, collectively or individually, personally or in their official capacities, from any and all claims, suits or causes of ANNEXATION & DEVELOPMENT AGREEMENT Page 3 Hoyt 'Tract 3091387.2 any nature whatsoever, related to, connected with, or arising from the City's requirement for the Developer to agree to pay the Fees as a condition to annexation of the Property. E. Time for Payment. Fees shall be paid as follows: (1) Within thirty (30) days after the effective date of the zoning classification(s) established for newly annexed Property, 20% of the Fees shall be paid; (2) The remainder of the Fees shall be paid at the earlier of the following events: (1) three years from the effective date of the ordinance annexing the Property; or (2) following approval but prior to recording of a final plat of the for the Property or portion thereof. F. Payment on Sale of Property. In the event that the Property or any portion thereof is sold prior to the time for payment of Fees provided in Section 2.E, all fees shall become immediately due and owing for the portion of the Property sold, unless the purchaser with the consent of the City assumes all obligations imposed under this agreement. G. Rezoning. In the event that the Property or any portion thereof is rezoned, Developer agrees that the City either may impose additional fees for new land uses or the new zoning classification, if the land has not been included in a roadway impact fee program, or charge roadway impact fees against the new development in accordance with law, if a roadway impact fee program has been adopted by the City, in which case any Fees previously paid shall be credited against any new road related fees or roadway impact fees due. Section 3. Waiver of Roadway Impact Fees and Discounts A. In the event that the City adopts a roadway impact fee program that becomes applicable to the Property following payment of Fees, the City agrees to waive payment of roadway impact fees or, in the event of rezoning, credit payment of Fees against roadway impact fees due with respect to the Property and/or other Property which may now or hereafter be owned by Developer in transportation planning area of the City in which the Property is located. B. The City agrees to discount Fees by an amount equal to the proportional value of improvements to arterial roadways designated in the Transportation Master Plan by Developer, as specified under Section 1, or as may be subsequently agreed to. Should the value of such improvements exceed the amount of Fees due for the Property, the City agrees to reimburse Developer for excess costs incurred from the proceeds of Fees or roadway impact fees collected from other developments served by such facilities. ANNEXATION & DEVELOPMENT AGREEMENT Page 4 Hoyt Tract 3091387.2 Section 4. General Provisions A. Assignment. This Agreement, any part thereof, or any interest herein shall not be assigned by Developer without the express written consent of the City. Any such assignment shall contain a provision that the assignee waives and acknowledges the matters set out in Section 2.D herein. B. Effect of Failure to Annex. In the event that the City fails to annex the Property as requested by Developer, or portion thereof, this Agreement shall be deemed null and void with respect to such Property or portion thereof. C. Waiver. No covenant or condition of this Agreement may be waived without consent of the Parties. Forbearance or indulgence by the City shall not constitute a waiver of any covenant or condition to be performed pursuant to this Agreement. D. Independent Contractor Status. Developer agrees that it is an independent contractor and not an officer, agent or servant or employee of the City; that Developer shall have exclusive control of and right to control the details of the work performed hereunder and all persons performing same, and shall be responsible for the acts and omissions of its officers, agents, employees, contractors, subcontracts and consultants; that the doctrine of respondeat superior shall not apply as between or among the City, Developer, its officers, agents, employees, contractors, subcontractors and consultants, and nothing herein shall be constructed as creating a partnership or joint enterprise between and/or among the City, and/or Developer. E. Venue. Venue of any action brought hereunder shall be in Williamson County, Texas. F. Third Party Beneficiaries. For purposes of this Agreement, including its intended operation and effect, the Parties specifically agree that (1) the Agreement only affects matters /disputes between the Parties to this Agreement, and is in no way intended by the Parties to benefit or otherwise affect any third person or entity, other than Developer's lender, notwithstanding the fact that such third person or entities may be in a contractual relationship with the City or Developer or both; and (2) the terms of this Agreement are not intended to release, either by contract or operation of law, any third person or entity from obligations owing by them to either the City or Developer. G. Authority to Act. The Parties each represent and warrant that the signatories on this Agreement are authorized to execute this Agreement and bind his/her principals to the terms and provisions hereof. Each Party warrants that any action required to be taken in order for this Agreement to be binding on it has been duly and properly taken prior to the execution of this Agreement. ANNEXATION & DEVELOPMENT AGREEMENT Page 5 Hoyt Tract 30913872 H. Incorporation of Recitals. The recitals contained at the beginning of this Agreement shall be deemed a part of the Agreement and hereby are incorporated by reference herein. I. No Guarantee of Zoning. Nothing contained in this Agreement shall be construed as obligating the City to zone the Property in conformity with the zoning requested by Developer. J. Covenant Running With the Land. The covenants contained herein shall run with the land and bind all successors, heirs and assignees of the Property owner. In addition, this Agreement shall be filed of record in the Official Property Records of Williamson County, Texas as evidence thereof. K. Releases. Provided there exists no event of default under this Agreement, Developer will be entitled to have all or a portion of the Property released from the terms and conditions of this Agreement upon full payment of the Fees due for the Property or portion thereof. At the time a partial release is requested, the Developer must furnish the City a calculation of area by field notes and a plat indicating the area to be released. All expenses incident to the granting of releases will be bome by the Developer. ANNEXATION & DEVELOPMENT AGREEMENT [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] Page 6 Hoyt Tract 0913872 IN WITNESS WHEREOF, the Parties to these presents have executed this � CP ntract in J' two (2) counterparts, each of which shall be deemed an original on this the day of February, 2002. THE STATE OF TEXAS COUNTY OF WILLIAMSON 2002. CITY OF By ANNEXATION & DEVELOPMENT AGREEMENT Page 7 Ro Stluka, Jr., Mayor DEVELOPER UND ROCK, TEXAS Continental Homes of Texas, L.P. (a Texas limited partnership) By: CHTEX of Texas, Inc. (a Texas corporation) Its General Partner By: T itchell, Vice President CITY OF ROUND ROCK ACKNOWLEDGMENT BEFORE ME, the undersigned authority, a notary public in and for the State of Texas, on this day personally appeared Robert A. Stluka, Jr., known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he has authority to act on behalf of the City of Round Rock, and that he executed same for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 1 day of February, Notary's Printed Name Neivi. lh',:'ad f th RArie EZ Hoyt Tract -3091387.2 THE STATE OF TEXAS COUNTY OF WILLIAMSON 2002. § § CONTINENTAL HOMES OF TEXAS, L.P. ACKNOWLEDGMENT BEFORE ME, the undersigned authority, a notary public in and for the State of Texas, on this day personally appeared Terry E. Mitchell, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he has authority to act on behalf of CHTEX of Texas, Inc., a Texas corporation, general partner of Continental Homes of Texas, L.P., a Texas Limited partnership, authorized to do business in Williamson County, and that he executed same for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the /q day of February, •' TIMOTHY C. TAYLOR, SR. MY COMMISSION E%%RES : November 21, 20:6 ANNEXATION & DEVELOPMENT AGREEMENT e. Notaryyublic' in and fort State of Texas I1Wt0I1iq I - IAU��✓��r. Notary's Printed Name Page 8 Hoyt Tract EXHIBIT A FIELD NOTE DESCRIPTION: A 91.245 ACRE TRA BEING A PARCEL OR TRACT OF LAND OUT OF JR. SURVEY ABSTRACT NO. 173, AND BEING OUT THAT CERTAIN TRACT DESCRIBED AS 97.6 ACR DEED TO A.W. HOYT, JR. PROPERTIES, LTD., DA AND RECORDED IN DOCUMENT NO. 9638879 RECORDS OF WILLIAMSON COUNTY, TEXAS, PARTICULARLY DESCRIBED BY METES AND BOU BEGINNING at an iron rod found at a point in the north Road 113, known locally as Kiphen Road, for the south tract of land said to contain 34.37 acres in a General Investments Limited Partnership recorded in Document N Official Records of Williamson County, Texas, for the s 97.6 acre tract, for the southwest comer and POINT 0 herein described tract; THENCE North 00 East, departing said nonh Road 113, 1786.91 feet, to an iron rod found 3n the south Road 117, for the northeast corner of said 84.37 acre tract said 97.6 acre tract, for the northwest comer of this tract; THENCE South 89 °43'24" East, with said south right -o 1 - 17 the north line of said 97.6 acre tract, 2389.35 feet to a west right -of -way of County Road 122, known locally as northeast comer of said 97.6 acre tract, for the northeast co THENCE South 00 °13'28" Viest, with said west right -o 122 the east line of said 97.6 acre tract, a distance of 1476 point, for the southeast corner of this tract; 1. South 89 °37'49" West, a distance of 950.45 feet to a • <Iculated point, for an angle corner of this tract; 2. North 89°55'14" West, a distance of 50.30 feet to a :lculated point, for an angle comer of this tract; 3. South 00 °04'46" West, a distance of 295.00 feet to a . lculated point, in said north right -of -way of County Road 113, the south line • f said 97.6 acre tract, for an angle corner of this tract; 5:\ LAND650- 700 \698\docs \DESC_91.243 AC.doc 12/211/00 Page 1 of 2 TIIENCE through said 97.6 acre tract the following three ( ) courses: E WILLIS DONAHO, F AND A PART OF S IN A WARRANTY D AUGUST 1, 1996 OF THE OFFICIAL ND BEING MORE DS AS FOLLOWS: 'ght -of -way of County t corner of that certain rranty Deed to MTV mber 9608169, of the thwe$l comer of said BEGINNING of the ght-of -way of County 'ght -of-way of County tc northwest corner of -way of County Road iron rod found in the ed Bud Lane. for 1 r of this tract; way of County Road 12 feet l0 a calculated RECORDERS MEMORANDUM All or parts of the text on this page was not clearly legible for satisfactory recordation, EXHIBIT A THENCE North 89°55'14" West. with said north right -way of County Road 113, the south line of said 97.6 acre tract, a distance of 1401}.91 feet to the POINT OF BEGINNING. Containing 91.245 acres of land more or less. — 28 :.zcxxa eorgc E. Lucas Date Registered Professional Land Surveyor NO. 4160 State of Texas Randall Jones Engineering Inc 1212 E. Braker Lane Austin, Texas 78753 S:\L AND650- 700\698\docs \DESC_91.245„AC.doc 1228/00 Page 2 of 2 EXHIBIT A °3091387.2 ANNEXATION & DEVELOPMENT AGREEMENT Exhibit B (Location Of County Road 113, County Road 122, and County Road 117 On The Property) [See attached] Exhibit B Page 1 Hoyt Tract EXHIBIT B \ Ai OL AIW ABOW WINDT RECORDERS MEMORANDUM All or parts of the text on this page was not clearly legible for satisfactory recordation. EXHIBIT B Development Stage Date Preliminary Plan Approval Approved October 17, 2001 Final Plat Approval for First Phase Estimated March 20, 2002 Construction Plan Approval for First Phase Estimated May 7, 2002 Estimated Building Permits for First Phase Estimated November 14, 2002 Buildout of Subdivision Estimated 2006 r 3091387.2 ANNEXATION & DEVELOPMENT AGREEMENT Exhibit C (Development Schedule) The following is Continental Homes of Texas, L.P.'s estimated development schedule for the Hoyt Tract. This schedule and all dates are subject to change depending on, among other things, the timing of governmental approvals. Exhibit C Page 1 Milburn Homes — Hoyt Tract 3091387.2 FEE: $3,600 /net developable acre of SF -2 ZONING: SF -2 (entire tract) NET DEVELOPABLE ACRES 86.97 acres ESTIMATED No. OF LOTS: 335 single family lots COUNTY RoAD 113 ROW: 0.69 acres COUNTY ROAD 122 ROW: 0.85 acres COUNTY ROAD 117 ROW: 1.37 acres TOTAL AMOUNT OF FEES: $313,092.00 ANNEXATION & DEVELOPMENT AGREEMENT EXHIBIT D (Fee Schedule) FILED AND RECORDED OFFICIAL PUBLIC RECORDS 09- 16- 200702:49 PM 2002071144 ANDERSON $37.00 NANCY E. RISTER COUNTY CLERK WILLIAMSON COUNTY, TEXAS Exhibit D Page 1 ..4.Zt. /Ze,Cli., CITY OF ROUND ROCK 2 ADMINISTRATION 221 EAST MAIN STREET ROUND ROCK. TEXAS 78664 Milburn Homes — Hoyt Tract RESOLUTION NO. R- 02- 02- 14 -13D2 WHEREAS, the City of Round Rock wishes to enter into an Annexation & Development Agreement for Roadway Facilities with Continental Homes of Texas, L.P., for 91.116 acres of land out of the Willis Donaho, Jr. Survey, A -173, in Williamson County, Texas, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City an Annexation & Development Agreement for Roadway Facilities with Continental Homes of Texas, L.P., for 91.116 acres of land out of the Willis Donaho, Jr. Survey, A -173, in Williamson County, Texas, 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 upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 14th day of F- oruary, 2002 agfirkaRL. .4! ROE RT A. STLUKA, JR., Mayor AT T: CHRISTINE R. MARTINEZ, City Secret.f ::0➢MA\ wow. M1X\ O:\ WU OX\& BSOL "TI\40019915.WP /r2 /ac City of Round Rock, Texas 3075799.3 ANNEXATION & DEVELOPMENT AGREEMENT FOR ROADWAY FACILITIES RECITALS Continental Homes of Texas, L.P., a Texas limited partnership doing business as Milburn Homes (hereinafter "Developer "), and the City of Round Rock, a Texas municipality of the County of Williamson, State of Texas, (hereinafter "the City, ") (collectively hereinafter "the Parties, ") do hereby enter into this Annexation & Development Agreement for Roadway Facilities (hereinafter the "Agreement ") for the purposes of providing for an adequate network of arterial roadways to serve the development project described herein, and providing for reimbursements for excess contributions or credits against roadway impact fees. Whereas, Developer has pending a request for annexation of a tract of land approximately 91.116 acres in size, hereinafter "the Property," which is located in the northeast planning area of the City and for which a legal description is attached hereto as Exhibit A; and Whereas, Developer has requested SF -2 zoning (the "Requested Zoning ") for the development of the Property as single family residential (the "Project "); and Whereas, there presently are insufficient arterial roads in the vicinity of the Property to support the development of such land as contemplated by the Requested Zoning; and Whereas, it is anticipated that, in the event that annexation is approved for the Property as requested by Developer and the Property is developed, there will be significant traffic impacts on the existing and future arterial road network generated by development of the Property; and Whereas, the City has adopted its Transportation Master Plan identifying arterial roadways needed to serve the development of the Property and other property in the northeast planning area of the City; and Whereas, the City has conducted a study of the estimated cost of constructing the needed arterial roadways serving the Property, as shown on the Transportation Master Plan, and the City has provided a copy of the Transportation Master Plan and the aforementioned study to Developer; and Whereas, Developer has requested annexation of the Property in advance of construction of the needed arterial roadways; and Whereas, in exchange for annexation of the Property in advance of the construction of the needed arterial roadways, Developer is willing to pay the Fees (as defined in Section 2 below) to partially offset the City's cost of constructing said arterial roadways; and ANNEXATION & DEVELOPMENT AGREEMENT Page 1 00020379.DOC EXHIBIT Hoyt Tract 3075799.3 .l Whereas, the Developer acknowledges that the Fees are proportional to the traffic impact anticipated from the proposed development of the Property; and Whereas, the Parties are desirous of assuring that the Project is adequately served with arterial roadways in a timely manner; NOW THEN in consideration of the mutual covenants herein contained, the Parties hereby agree as follows: Section 1. Provision of Roadways and Development Schedule 00020379.DOC A. Obligation to Dedicate Land. Developer agrees to dedicate right -of -way comprising approximately 2.91 acres of land (0.69 acres for County Road 113; 0.85 acres for County Road 122 and 1.37 acres for County Road 117) in the locations shown on Exhibit B (collectively the "Roads "). The right -of -way (or applicable portion thereof) will be dedicated by Developer at the time the Property (or applicable portion thereof) is platted or when the City determines the right -of -way is needed for construction of one or more of the Roads, whichever first occurs. B. Access Roads. Developer at its sole expense and in the due course of development of the Property shall provide adequate roadway access on the Property to the City's arterial road network serving the Property, consistent with the City's subdivision standards. C. Development Schedule. Development by Developer of the annexed Property described in Exhibit A shall progress in accordance with the schedule attached hereto and incorporated by reference as Exhibit C. The land uses, numbers of dwelling units, and the timing of development set forth in Exhibit C are approximate and subject to change. D. Contributions Approximate. Specification of the dimensions and location of right -of -way for the Roads as set forth in paragraph A above is approximate and is included for purposes of estimating the credits and discounts to Fees, as provided for in section 3 of this Agreement. The precise locations and dimensions of such right -of -way shall be determined at the time of platting of the Property or final design of the Roads improvements. The City may adjust the total amount of the Fees to be paid pursuant to this Agreement to reflect the actual dimensions of the Developer's contributions of right -of -way (that is, the total number of net developable acres in the Property). Section 2. Annexation Fees A. Purpose and Basis for Fee. Developer acknowledges that the existing roadways in the vicinity of the Project and the Property are inadequate to serve the ANNEXATION & DEVELOPMENT AGREEMENT Page 2 Hoyt Tract 3075799.3 ANNEXATION & DEVELOPMENT AGREEMENT 00020379.DOC development as proposed by the Developer. In consideration for City agreeing to annex the Property and allowing the Developer to begin its Project, Developer agrees to pay fees to the City for said annexation. The obligation to pay Fees will accrue when the Property is annexed, and Fees shall be paid and calculated as set forth below. The annexation fees ( "Fees ") provided for herein are based upon the traffic impact anticipated from the Requested Zoning. B. Amount of Fees. In addition to dedication of right -of -way for the Roads as identified in Section 1, Developer agrees to pay to the City annexation Fees in the amount of $3,600.00 per Project Net Developable Acre. The Project, if developed in accordance with the Requested Zoning, will contain approximately 86.97 net developable acres of land being the Property, net of developable land for the right -of -way to be dedicated for Roads and 1.24 acres to be dedicated as parkland (the "Project Net Developable Acres "). The total amount of Fees ($3,600 multiplied by the number of Project Net Developable Acres), shall be payable as set forth in this Agreement. C. Modification of Fees. If the actual zoning of the Property is different from the Requested Zoning, then (i) the Parties agree that the annexation Fees may be recalculated to reflect any change in traffic impact as set forth in subparagraphs (1) and (2) below, or (ii) the Owner or Developer, as applicable, may request disannexation as provided in subparagraph (3) below. (1) If any such recalculation pursuant to clause (i) above results in increased Fees, then Owner and/or Developer shall have the option of paying the increased Fees or requesting disannexation of the Property, and upon disannexation, Owner or Developer (as applicable, based upon who paid the Fees) will be entitled to a refund of any Fees previously paid. (2) If any such recalculation pursuant to clause (i) above results in a reduced Fees, and if disannexation is not requested and approved pursuant to subparagraph (4) below, then Owner or Developer (as applicable, based upon who paid the Fees) shall be entitled to a refund of Fees previously paid. (3) In the event that Owner or Developer requests disannexation because Developer does not receive the Requested Zoning and if the City does not disannex the Property, then this Agreement shall be null and void and the Parties shall have no further duties, obligations, or rights hereunder, including without limitation the obligation to dedicate right -of- way as provided in this Agreement. Page 3 Hoyt Tract 3075799.3 00020379.DOC D. Waiver and Acknowledgment. Developer (i) unconditionally waives any claim that payment of Fees or construction of improvements pursuant to this agreement constitutes imposition of an unauthorized roadway impact fee within the meaning of Tex. Loc. Gov't Code ch. 395 or otherwise is inconsistent with such law; (ii) unconditionally acknowledge that fees provided for herein are proportional to the traffic impact anticipated from Developer's proposed development of the Property; and (iii) hereby releases and discharges the City, and all of its officials, officers, agents, consultants, and employees, collectively or individually, personally or in their official capacities, from any and all claims, suits or causes of any nature whatsoever, related to, connected with, or arising from the City's requirement for the Developer to agree to pay the Fees as a condition to annexation of the Property. E. Time for Payment. Fees shall be paid as follows: (1) Within thirty (30) days after the effective date of the zoning classification(s) established for newly annexed Property, 20% of the Fees shall be paid; (2) The remainder of the Fees shall be paid at the earlier of the following events: (1) three years from the effective date of the ordinance annexing the Property; or (2) following approval but prior to recording of a final plat of the for the Property or portion thereof. F. Payment on Sale of Property. In the event that the Property or any portion thereof is sold prior to the time for payment of Fees provided in Section 2.E, all fees shall become immediately due and owing for the portion of the Property sold, unless the purchaser with the consent of the City assumes all obligations imposed under this agreement. G. Rezoning. In the event that the Property or any portion thereof is rezoned, Developer agrees that the City either may impose additional fees for new land uses or the new zoning classification, if the land has not been included in a roadway impact fee program, or charge roadway impact fees against the new development in accordance with law, if a roadway impact fee program has been adopted by the City, in which case any Fees previously paid shall be credited against any new road related fees or roadway impact fees due. Section 3. Waiver of Roadway Impact Fees and Discounts A. In the event that the City adopts a roadway impact fee program that becomes applicable to the Property following payment of Fees, the City agrees to waive payment of roadway impact fees or, in the event of rezoning, credit payment of Fees against roadway impact fees due with respect to the Property and/or other ANNEXATION & DEVELOPMENT AGREEMENT Page 4 Hoyt Tract 30757993 Property which may now or hereafter be owned by Developer in transportation planning area of the City in which the Property is located. B. The City agrees to discount Fees by an amount equal to the proportional value of improvements to arterial roadways designated in the Transportation Master Plan by Developer, as specified under Section 1, or as may be subsequently agreed to. Should the value of such improvements exceed the amount of Fees due for the Property, the City agrees to reimburse Developer for excess costs incurred from the proceeds of Fees or roadway impact fees collected from other developments served by such facilities. Section 4. General Provisions 00020379.DOC A. Assignment. This Agreement, any part thereof, or any interest herein shall not be assigned by Developer without the express written consent of the City. Any such assignment shall contain a provision that the assignee waives and acknowledges the matters set out in Section 2.D herein. B. Effect of Failure to Annex. In the event that the City fails to annex the Property as requested by Developer, or portion thereof, this Agreement shall be deemed null and void with respect to such Property or portion thereof. C. Waiver. No covenant or condition of this Agreement may be waived without consent of the Parties. Forbearance or indulgence by the City shall not constitute a waiver of any covenant or condition to be performed pursuant to this Agreement. D. Independent Contractor Status. Developer agrees that it is an independent contractor and not an officer, agent or servant or employee of the City; that Developer shall have exclusive control of and right to control the details of the work performed hereunder and all persons performing same, and shall be responsible for the acts and omissions of its officers, agents, employees, contractors, subcontracts and consultants; that the doctrine of respondeat superior shall not apply as between or among the City, Developer, its officers, agents, employees, contractors, subcontractors and consultants, and nothing herein shall be constructed as creating a partnership or joint enterprise between and/or among the City, and/or Developer. E. Venue. Venue of any action brought hereunder shall be in Williamson County, Texas. F. Third Party Beneficiaries. For purposes of this Agreement, including its intended operation and effect, the Parties specifically agree that (1) the Agreement only affects matters/disputes between the Parties to this Agreement, and is in no way intended by the Parties to benefit or otherwise affect any third person or entity, ANNEXATION & DEVELOPMENT AGREEMENT Page 5 Hoyt Tract 3075799.3 00020379.DOC other than Developer's lender, notwithstanding the fact that such third person or entities may be in a contractual relationship with the City or Developer or both; and (2) the terms of this Agreement are not intended to release, either by contract or operation of law, any third person or entity from obligations owing by them to either the City or Developer. G. Authority to Act. The Parties each represent and warrant that the signatories on this Agreement are authorized to execute this Agreement and bind his/her principals to the terms and provisions hereof. Each Party warrants that any action required to be taken in order for this Agreement to be binding on it has been duly and properly taken prior to the execution of this Agreement. H. Incorporation of Recitals. The recitals contained at the beginning of this Agreement shall be deemed a part of the Agreement and hereby are incorporated by reference herein. I. No Guarantee of Zoning. Nothing contained in this Agreement shall be construed as obligating the City to zone the Property in conformity with the zoning requested by Developer. J. Covenant Running With the Land. The covenants contained herein shall run with the land and bind all successors, heirs and assignees of the Property owner. In addition, this Agreement shall be filed of record in the Official Property Records of Williamson County, Texas as evidence thereof. K. Releases. Provided there exists no event of default under this Agreement, Developer will be entitled to have all or a portion of the Property released from the terms and conditions of this Agreement upon full payment of the Fees due for the Property or portion thereof. At the time a partial release is requested, the Developer must furnish the City a calculation of area by field notes and a plat indicating the area to be released. All expenses incident to the granting of releases will be borne by the Developer. IN WITNESS WHEREOF, the Parties to these presents have executed this Contract in two (2) counterparts, each of which shall be deemed an original on this the day of February, 2002. ANNEXATION & DEVELOPMENT AGREEMENT Page 6 Hoyt Tract 3075799.3 THE STATE OF TEXAS COUNTY OF WILLIAMSON 2002. ANNEXATION & DEVELOPMENT AGREEMENT 00020379.DOC CITY OF ROUND ROCK, TEXAS By: Robert A. Stluka, Jr., Mayor DEVELOPER Continental Homes of Texas, L.P. (a Texas limited partnership) By: CHTEX of Texas, Inc. (a Texas corporation) Its General Partner § By: Terry E. Mitchell, Vice President CITY OF ROUND ROCK ACKNOWLEDGMENT BEFORE ME, the undersigned authority, a notary public in and for the State of Texas, on this day personally appeared Robert A. Stluka, Jr., known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he has authority to act on behalf of the City of Round Rock, and that he executed same for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of February, Notary Public in and for the State of Texas Notary's Printed Name Page 7 Hoyt Tract 3075799.3 THE STATE OF TEXAS COUNTY OF WILLIAMSON BEFORE ME, the undersigned authority, a notary public in and for the State of Texas, on this day personally appeared Terry E. Mitchell, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he has authority to act on behalf of CHTEX of Texas, Inc., a Texas corporation, general partner of Continental Homes of Texas, L.P., a Texas limited partnership, authorized to do business in Williamson County, and that he executed same for the purposes and consideration therein expressed and in the capacity therein stated. 2002. ANNEXATION & DEVELOPMENT AGREEMENT 00020379.DOC § § CONTINENTAL HOMES OF TEXAS, L.P. ACKNOWLEDGMENT GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of February, Notary Public in and for the State of Texas Notary's Printed Name Page 8 Hoyt Tract 3075799.3 ANNEXATION & DEVELOPMENT AGREEMENT 00020379.DOC Exhibit A (Property Description) Page 9 Hoyt Tract 3075799.3 ANNEXATION & DEVELOPMENT AGREEMENT 00020379.DOC Exhibit B Location of Arterial A on the Property Page 10 Hoyt Tract Development Stage Estimated Date Preliminary Plan Approval March 20, 2002 Final Plat Approval for First Phase May 1, 2002 Construction Plan Approval for First Phase July 2, 2002 Estimated Building Permits for First Phase January 3, 2003 Buildout of Subdivision 2006 3075799.3 ANNEXATION & DEVELOPMENT AGREEMENT 00020379.DOC Exhibit C (Development Schedule) The following is Continental Homes of Texas, L.P.'s estimated development schedule for the Dillard Tract. This schedule and all dates are subject to change depending on, among other things, the timing of governmental approvals. Page 11 Hoyt Tract 30757993 Exhibit D (Fee Schedule, Net Developable Acres, Fee Per Acre for each Zoning District, Total Amount of Fees for Each Land Use, and Total Amount of Fees Due) FEE $3,600 /net developable acre of SF -2 ZONING: SF -2 (entire tract) NET DEVELOPABLE ACRES 70.13 acres ESTIMATED NO. OF LOTS: 277 single family lots ARTERIAL A ROW: 5.75 acres TOTAL AMOUNT OF FEES: $252,108.00 ANNEXATION & DEVELOPMENT AGREEMENT 00020379.DOC Page 12 Hoyt Tact DATE: February 7, 2002 SUBJECT: City Council Meeting — February 14, 2002 ITEM: 13.D.2. Consider a resolution authorizing the Mayor to execute an Annexation & Development Agreement for Roadway Facilities with Continental Homes of Texas, L.P., for 91.116 acres of land. (Hoyt Tract) Resource: Joe Vining, Planning Director History: The owners of the 91.116 acres noted above located in the vicinity of County Roads 113 and 122, wish to annex and develop their property at urban densities. The arterial roads in this area are not sufficient to handle increase traffic that would be generated by the proposed development. Funding: N/A Cost: N/A Source of Funds: Outside resources: Edmond Haas, Parsons Transportation Group Dan Seiko, Dunkin, Seiko & Associates, Inc. Impact: Ensures fair and equitable cost sharing of arterial road cost while allowing annexations to proceed in a timely fashion. Benefit: City is partially compensated for each developers proportionate share of road improvements. Public Comment: N/A The owners wish to proceed with their developments without delay and are prepared to enter into an Annexation and Development Agreement to provide their proportionate share of cost for improving these roads in order to avoid delays in the annexation and zoning of their property. Sponsor: Planning and Community Development Department