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R-02-02-14-13D3 - 2/14/2002THE STATE OF TEXAS COUNTY OF WILLIAMSON * CITY OF ROUND ROCK * * 20020'71143 16 Re s 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, Continental Homes of Texas, L.P. and Robert W dillard and Dianne W. Dillard, regarding 78.158 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. (b CHRISTINE R. MARTINEZ City Secretary 3082849.1 ANNEXATION & DEVELOPMENT AGREEMENT FOR ROADWAY FACILITIES Continental Homes of Texas, L.P., a Texas limited partnership doing business as Milburn Homes (hereinafter "Developer "), Robert W. Dillard and Diane W. Dillard (hereinafter "Owner 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, Owner has pending a request for annexation of a tract of land approximately 78.16 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 entered into a contract with Owner to acquire the Property from Owner; 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 RequestedZoning; and Whereas, it is anticipated that, in the event that annexation is approved for the Property as requested by Owner and 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, Owner, on behalf of Developer, has requested annexation of the Property in advance of construction of the needed arterial roadways; and ANNEXATION & DEVELOPMENT AGREEMENT Page 1 Dillard Traci 5062 6 Whereas, in exchange for annexation of the Property in advance of the construction of the ' needed arterial roadways, Owner and Developer are 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, Owner and Developer acknowledge 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 A. Obligation to Dedicate Land. Owner and Developer agree to dedicate right -of- way comprising approximately 5.75 acres of land on the Property one hundred feet (100') in width for Arterial A, in the location shown on Exhibit B (the "Road "). The right -of -way (or applicable portion thereof) will be dedicated by Owner or Developer, as applicable, 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. Owner or Developer, as applicable, 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 Owner's or Developer's contributions of right -of -way (that is, the total number of net developable acres in the Property). ANNEXATION & DEVELOPMENT AGREEMENT Page 2 Dillard Tract 3082849.1 Section 2. Annexation Fees A. Purpose and Basis for Fee. Owner and Developer acknowledge 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, Owner and Developer agree 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, Owner and Developer agree 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 and Developer's plans for the Project, will contain approximately 70.13 net developable acres of land being the Property, net of developable land for the right -of -way to be dedicated for Roads, land in flood plan, and land 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 (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, ANNEXATION & DEVELOPMENT AGREEMENT Page 3 Dillard Tract 3082849.1 including without limitation the obligation to dedicate right -of -way as provided in this Agreement. D. Waiver and Acknowledgment. Owner and Developer (i) unconditionally waive 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 release and discharge 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 Owner and 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 (other than the sale of the Property by Owner to Developer), 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, Owner and Developer agree 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 ANNEXATION & DEVELOPMENT AGREEMENT Page 4 Dillard Traci 3082849.1 Fees against roadway impact fees due with respect to the Property and/or other Property which may now or hereafter be owned by Owner or Developer (based upon who pays the Fees) 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 Owner or Developer, as applicable, 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 A. Assignment. This Agreement, any part thereof, or any interest herein shall not be assigned by Owner or Developer (except by Owner to Developer in connection with the contemplated sale of the Property by Owner to 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 Owner and 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. Owner and Developer agrees that they are independent contractors and not officers, agents or servants or employees of the City; that Owner and 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, Owner, 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 Owner or Developer. E. Venue. Venue of any action brought hereunder shall be in Williamson County, Texas. ANNEXATION & DEVELOPMENT AGREEMENT Page 5 Dillard Tract 3082849.1 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, Owner, 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, Owner, 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 Owner and 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 Public Records of Williamson County, Texas as evidence thereof. K. Releases. Provided there exists no event of default under this Agreement, Owner or Developer, as applicable, 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, Owner or Developer (whoever is requesting a release) must famish 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 Party requesting the release. ANNEXAT]ON & DEVELOPMENT AGREEMENT [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK) Page 6 Dillard Traci 3082849.1 IN WITNESS WHEREOF, the Parties to these presents have executed this ontract in three (3) counterparts, each of which shall be deemed an original on this the j11 day of February, 2002. CITY OF ROUND ROCK, TEXAS OWNER: ANNEXATION & DEVELOPMENT AGREEMENT Page 7 Robert W. Dillard 6CI"�GL(R� W, GLlJYZ�� — r - Diane W. Dillard DEVELOPER Continental Homes of Texas, L.P. (a Texas limited partnership) By: CHTEX of Texas, Inc. (a Texas corporation) Its General Partner By: T [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] chell, Vice President Dillard Tract 3082849.1 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 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. 2002. 2002. CITY OF ROUND ROCK ACKNOWLEDGMENT GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 1`I day of February, THE STATE OF TEXAS COUNTY OF WILLIAMSON ANNEXATION & DEVELOPMENT AGREEMENT NO SEAL �Intd�vru�� -l�1 N t Public in an or the State of Texas . 15Ti U . mA4Tii7 Notary's Printed Name ROBERT & DIANE DILLARD ACKNOWLEDGMENT BEFORE ME, the undersigned authority, a notary public-in and for the State of Texas, -on- this day personally appeared Robert W. Dillard and Diane W. Dillard, husband and wife, known to me to be the persons whose names are subscribed to the foregoing instrument and acknowledged to me that they executed same for the purposes and consideration therein expressed GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of February, c 7 ,Q a NotarA gublic in and f9 r t e State of Texas e ry l K f cuUt S Notary's Printed Name Page 8 Dillard Tract 3082849.1 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. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the . day of February, 2002. TIMOTHY C. TAYLOR sa MY COI.NIISSION EXPIRES November 21. 2005 ANNEXATION & DEVELOPMENT AGREEMENT § § Not Public i d for the tat of Texas Notary's Printed Name CONTINENTAL HOMES OF TEXAS, L.P. ACKNOWLEDGMENT Page 9 Dillard Tract EXHIBIT "A" METES AND BOUNDS DESCRIPTION BEING PART OF THE WILLIS DONAHO SURVEY, ABSTRACT NO. 173 IN WILLIAMSON COUNTY, TEXAS, AND BEING THAT SAME TRACT OF LAND DESCRIBED IN A DEED TO ROBERT W. DILLARD AND DIANE W. DILLARD RECORDED IN VOLUME 1390, PAGE 799 OF THE WILLIAMSON COUNTY OFFICIAL RECORDS (WCOR), SAID TRACT OF LAND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING at a rebar found on the north right -of -way line of County Road No. 113, at the southwest corner of said Dillard property, also the southeast corner of the Hossein Mehrabian 6.57 acre tract described in Volume 2386, Page 208 of the WCOR, for the southwest corner and PLACE OF BEGINNING hereof; THENCE with the common line between Mehrabian and Dillard, N 19 °07'54" W (bearing basis for this survey), passing Mehrabian's northeast corner 1416.18 feet to a rebar found at the southwest corner of Lot 1 of"Saddlebrook Estates Section 2" recorded in Cabinet F, Slide 42 of the Williamson County Plat Records (WCPR), on the east line of Lot 5 of "Saddlebrpok Estates Section 1" recorded in Cabinet F, Slide 40 of the WCPR, for the most westerly northwest corner hereof; THENCE with Dillard's north line, also the south line of Saddlebrook Estates Section 2, the following two calls: 1) N 59 °44' E 707.72 feet to a rebar found for an angle point, from which point another rebar found bears N 50 °08'22" E 0.15 feet; 2) N 75 °56' 17" E 445.42 feet to a rebar found at the southeast corner of Lot 13 of Saddlebrook Estates Section 2, for an ell comer hereof; THENCE with a westerly line of said Dillard tract, also the east line of Saddlebrook Estates Section 2, N 11 °08'47" W 649.85 feet to a rebar found at the northeast corner of Lot 11 of said subdivision, for the most northerly northwest corner hereof; THENCE with Dillard's most northerly line, also the south line of an old lane, approximately 30 feet in width, N 71 °45'26" E 871.07 feet to a 60-d nail found and N 71 °45'39" E 389.14 feet to a rebar found at Dillard's northeast corner, also the northwest corner of the M. Brown 5.00 acre tract described in Volume 710, Page 866 of the WCOR, for the northeast corner hereof THENCE with Dillard's east line, also the west line of said M. Brown 5.00 acres, and the west line of the Ledesma 2.50 acres described in Volume 1025, Page 136 and the west line of the Cross 2.50 acres described in Volume 955, Page 223 (both of the WCOR), S 0891'25" E 801.63 feet to a rebar found at Cross's southwest corner, also the northwest corner of the E. Carrell 29.00 acres described in Volume 663, Page 666 of the WCOR, for an angle point hereof • THENCE continuing with Dillard's east line, also Carrell's west line, S 08 °18'29" E 585.20 feet to a rebar found at Carrell's southwest corner, also the northwest corner of the MTV Investments 84.37 acres described in Document No. 9608169 of the WCOR, for an angle point hereof; Page 1 of 2 THENCE continuing with Dillard's east line, also MTV Investments west line, S 00 °34'05" W 266.02 feet to a rebar found at Dillard's most easterly southeast corner, also the northeast comer of the Robco Landscaping lne. 6.2217 acres described in Document No. 9715268 of the WCOR, for the most easterly southeast corner hereof; THENCE with Dillard's southerly line, also Robco's north line, N 88 °54'03" W 1152.67 feet to a rebar found at Robco's northwest comer, for an inside corner hereof; THENCE with Dillard's east line, also the west line of Robco and the west line of the Rockin' J. Corporation 5.69 acres described in Volume 1753, Page 835 of the WCOR, the following 2 calls: I) S 11°06'35" E at 245.70 feet pass a rebar found at the common westerly corner between Robco and Rockin' J. and continuing with the same course for a total distance of 610.41 feet to a rebar found for an angle point; 2) S 01 °06'02" W 634.79 feet to a rebar found on the north right -of -way line of County Road No. 113, at Rockin' l's southwest corner, for the most southerly southeast corner hereof; THENCE with the north right -of -way line of County Road 113, N 88°55'11" W 799.67 feet to the PLACE OF BEGINNING and containing 78.154 acres of land, more or less. NOTE: ALL REBARS (FOUND OR SET) ARE 1 /2" IN DIAMETER, UNLESS NOT ED OTHERWISE. ALL REBARS SET ARE CAPPED "1729 ". SEE SURVEY MAP PREPARED TO ACCOMPANY THIS DESCRIPTION. SURVEYED BY: RALPH HARRIS SURVEYOR, INC. 1406 Hether Street, Austin, Tx. 78704 (512) 444-1781 ES M • GRANT, ,PLS 1919 ay 31, 2001 lg c:lmydocs138234 3082849.1 ANNEXATION & DEVELOPMENT AGREEMENT Exhibit B (Location of Arterial A) [See attached] Exhibil B Page 1 Dillard Tact EXHIBIT B EXHIBIT B RECORDERS MEMORANDUM All or parts of the text on this page was not clearly legible for satisfactory recordation. 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 3082849.1 t ANNEXATION & DEVELOPMENT AGREEMENT 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. Exhibit Page 1 Dillard Traci 3082849.1 • 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 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) ANNEXATION & DEVELOPMENT AGREEMENT R-0-0 -1 FILED DND RECORDED OFFICIAL PUBLIC RECORDS 09- 16- 22000ER502:499PM 2002071143 0 NANCY E. RISTER ,COUNTY CLERK WILLIAMSON COUNTY, TEXAS Exhibit D Page I abluivrulo CITY OF ROUND ROCK ADMINISTRATION 221 EAST MAIN STREET ROUND ROCK. TEXAS 78664 Dillard Tract RESOLUTION NO. R- 02- 02- 14 -13D3 WHEREAS, the City of Round Rock wishes to enter into an Annexation & Development Agreement for Roadway Facilities with Continental Homes of Texas, L.P. and with Robert W. Dillard and Diane W. Dillard, for 78.158 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. and with Robert W. Dillard and Diane W. Dillard, for 78.158 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 Fe. uary, 2002 / ROT''- A. STLUKA, JR. , Mayor AT ^A ^ 1 City of Round Rock, Texas CHRISTINE R. MARTINEZ, City Secreta . :ODMA \WORLDOX \0: \WDOX \RESOLITTI \0001 W PO/r20214d3/sc 3082849.1 ANNEXATION & DEVELOPMENT AGREEMENT Ciki FOR ROADWAY FACILITIES Continental Homes of Texas, L.P., a Texas limited partnership doing business as Milbum Homes (hereinafter "Developer "), Robert W. Dillard and Diane W. Dillard (hereinafter "Owner"), 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, Owner has pending a request for annexation of a tract of land approximately 78.16 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 entered into a contract with Owner to acquire the Property from Owner; 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 Owner and 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, Owner, on behalf of Developer, has requested annexation of the Property in advance of construction of the needed arterial roadways; and ANNEXATION & DEVELOPMENT AGREEMENT Page 1 1 EXHIBIT "A" Dillard Tract 3082849.1 Whereas, in exchange for annexation of the Property in advance of the construction of the needed arterial roadways, Owner and Developer are 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, Owner and Developer acknowledge 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 A. Obligation to Dedicate Land. Owner and Developer agree 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 Owner or Developer, as applicable, 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. Owner or Developer, as applicable, 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 Owner's or Developer's contributions of right -of -way (that is, the total number of net developable acres in the Property). ANNEXATION & DEVELOPMENT AGREEMENT Page 2 Dillard Tract 3082849.1 Section 2. Annexation Fees A. Purpose and Basis for Fee. Owner and Developer acknowledge 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, Owner and Developer agree 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, Owner and Developer agree 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 and Developer's plans for the Project, will contain approximately 70.13 net developable acres of land being the Property, net of developable land for the right -of -way to be dedicated for Roads, land in flood plan, and land 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) (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) ANNEXATION & DEVELOPMENT AGREEMENT 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. 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, Page 3 Dillard Tract 3082849.1 including without limitation the obligation to dedicate right -of -way as provided in this Agreement. D. Waiver and Acknowledgment. Owner and Developer (i) unconditionally waive 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 release and discharge 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 Owner and 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 (other than the sale of the Property by Owner to Developer), 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, Owner and Developer agree 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 ANNEXATION & DEVELOPMENT AGREEMENT Page 4 Dillard Tract 3082849.1 Fees against roadway impact fees due with respect to the Property and /or other Property which may now or hereafter be owned by Owner or Developer (based upon who pays the Fees) 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 Owner or Developer, as applicable, 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 A. Assignment. This Agreement, any part thereof, or any interest herein shall not be assigned by Owner or Developer (except by Owner to Developer in connection with the contemplated sale of the Property by Owner to 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 Owner and 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. Owner and Developer agrees that they are independent contractors and not officers, agents or servants or employees of the City; that Owner and 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, Owner, 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 Owner or Developer. E. Venue. Venue of any action brought hereunder shall be in Williamson County, Texas. ANNEXATION & DEVELOPMENT AGREEMENT Page 5 Dillard Tract 3082849.1 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, Owner, 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, Owner, 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 Owner and 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 Public Records of Williamson County, Texas as evidence thereof. K. Releases. Provided there exists no event of default under this Agreement, Owner or Developer, as applicable, 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, Owner or Developer (whoever is requesting a release) 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 Party requesting the release. ANNEXATION & DEVELOPMENT AGREEMENT [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] Page 6 Dillard Tract 3082849.1 IN WITNESS WHEREOF, the Parties to these presents have executed this Contract in three (3) counterparts, each of which shall be deemed an original on this the day of February, 2002. ANNEXATION & DEVELOPMENT AGREEMENT CITY OF ROUND ROCK, TEXAS By: Robert A. Stluka, Jr., Mayor OWNER: Robert W. Dillard Diane W. Dillard DEVELOPER Continental Homes of Texas, L.P. (a Texas limited partnership) By: CHTEX of Texas, Inc. (a Texas corporation) Its General Partner [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] By: Terry E. Mitchell, Vice President Page 7 Dillard Tract 3082849.1 THE STATE OF TEXAS COUNTY OF WILLIAMSON BEFORE ME, the undersigned authority, a notary public in and for the State of Texas, on this clay 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. 2002. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of February, THE STATE OF TEXAS COUNTY OF WILLIAMSON 2002. ANNEXATION & DEVELOPMENT AGREEMENT § § CITY OF ROUND ROCK ACKNOWLEDGMENT Notary Public in and for the State of Texas Notary's Printed Name § ROBERT & DIANE DILLARD ACKNOWLEDGMENT BEFORE ME, the undersigned authority, a notary public in and for the State of Texas, on this day personally appeared Robert W. Dillard and Diane W. Dillard, husband and wife, known to me to be the persons whose names are subscribed to the foregoing instrument and acknowledged to me that they executed same for the purposes and consideration therein expressed. 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 Dillard Tract 30828491 THE STATE OF TEXAS COUNTY OF WILLIAMSON 2002. ANNEXATION & DEVELOPMENT AGREEMENT § § 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 day of February, Notary Public in and for the State of Texas Notary's Printed Name Page 9 Dillard Tract 3082849.1 Exhibit A (Property Description) ANNEXATION & DEVELOPMENT AGREEMENT Page 10 Dillard Tract 3082849.1 ANNEXATION & DEVELOPMENT AGREEMENT Exhibit B (Location of County Road 113, County Road 122, and County Road 117 on the Property) Page II Dillard 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 3082849.1 ANNEXATION & DEVELOPMENT AGREEMENT Exhibit C (Development Schedule) Page 12 Dillard Tract 3082849.1 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 Page 13 Dillard Tract T . 1 DATE: February 7, 2002 SUBJECT: City Council Meeting — February 14, 2002 ITEM: 13.D.3. Consider a resolution authorizing the Mayor to execute an Annexation & Development Agreement for Roadway Facilities with Continental Homes of Texas, L.P. and with Robert W. Dillard and Diane W. Dillard for 78.158 acres of land. (Dillard Tract) Resource: Joe Vining, Planning Director History: The owners of the 78.158 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 Sefko, Dunkin, Sefko & Associates, Inc. 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. 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 Sponsor: Planning and Community Development Department