R-03-04-10-12C1 - 4/10/2003Recitals:
FIRST AMENDMENT TO
COST SHARING AND REIMBURSEMENT AGREEMENT
THIS FIRST AMENDMENT TO COST SHARING AND REIMBURSEMENT AGREEMENT (this "First
Amendment ") is executed to be effective the 10 day of IL , 2003, by and among H.E.
Butt Grocery Company, a Texas corporation ( "HEB "), M 1460 Partners, Ltd., a Texas
limited partnership ( "1460 Partners "), 54 Acres Ltd., a Texas limited partnership ( "54
Acres "), Highland Management, Inc., a Texas corporation ( "Highland"), M &M Equities
IV, Inc., a Texas corporation ( "M&M ), EMI Leasing Partners, LP, a Texas limited
partnership ( "EMI "), Church of Christ of Round Rock, a ( "Church "), Heritage
Title Company of Austin, Inc., a Texas corporation ( "Escrow Agent"), and The City of
Round Rock, a Texas municipal corporation (the "City ").
I. The parties entered into that certain Cost Sharing and Reimbursement Agreement dated
effective 3' a " l , 2003 (the "Agreement ") regarding the funding and construction of
certain water and wastewater line improvements, as more particularly described therein.
II. The Agreement provides that the City will pursue acquisition of an easement across the
property of the Palm Valley Lutheran Church (the "PVLC Easement ") for purposes of
constructing and/or completing a water line "loop ", as more particularly described in the
Agreement.
III. The Agreement provides that the City will deposit $91, 073.37 into the Escrow Account
as the City's Project Contribution, as those terms are defined in the Agreement.
IV. The parties want to enter into this First Amendment to evidence their new agreement
regarding the PVLC Easement and the amount of money that the City will be required to
deposit, and its uses, all as set forth in this First Amendment.
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants and benefits herein contained, the parties hereby covenant and agree as
follows:
Agreement:
1. Sections 2(a) and (b) of the Agreement are hereby deleted in their entirety, and the
following substituted in their place:
"(a) Project Contribution. The Developers agree that their respective contributions,
as well as the number of LUEs each Developer has that will be served by the Project,
shall be as set forth on the Schedule. Within 15 days after the date this Agreement is
fully executed, each Developer will deposit its applicable contribution into the Escrow
Account, such amounts being set forth on the Schedule (with respect to each
Developer and the City, its "Project Contribution "). The City hereby agrees that as
of the date of this Agreement, there is and shall be reserved to each affected property
O: \wdox \CORK \ gni \hwy79agr100046525.1OC
R-03-01-1-J0-1X1
1
Account, such amounts being set forth on the Schedule (with respect to each
Developer and the City, its "Project Contribution "). The City hereby agrees that as
of the date of this Agreement, there is and shall be reserved to each affected property
hereunder at least the number of LUE's of water and wastewater service, as
applicable, as set forth on the Schedule, and further agrees that the City shall provide
such service (including allowing all connections required therefor) conditioned only
upon completion of the Project. If all of the Project Contributions required by this
Section 2 are not deposited into the Escrow Account as described herein, then this
Agreement will be automatically terminated, and any Project Contributions previously
deposited will be returned. However, all Developers who have made their Project
Contributions may, in the exercise of their sole discretion, by written amendment to
this Agreement, agree to absorb the Project Contributions of any non - contributing
Developer, and proceed with the Project.
(b) Funding of Contribution by the City.
(i) The City agrees that within 60 days after the Construction Contract (as
defined in Section 4.(d) hereof) for the Project is executed in accordance with and
pursuant to this Agreement, the City shall deposit with the Escrow Agent a single
lump sum payment in the amount of $91, 073.37 or thirty percent (30 %) of the total
contract price, whichever amount is less as set forth on the Schedule (the "City's
Deposit "), provided, however, that notwithstanding the foregoing, if on the date that
the City's Deposit is due hereunder the City has not yet obtained the PVLC Easement
for the "loop" portion of the Water Project (as defined and described in Section 4(c)
hereof), then the City may instead deposit only $51,073.37 with the Escrow Agent,
and retain the remaining $40,000.00 of its Project Contribution until such time as the
City obtains the PVLC F sPment. If the City obtains the PVLC Easement prior to the
date that the Project is otherwise completed, then the City shall immediately deposit
the remaining $40,000.00 with the Escrow Agent, and the Project Manager will cause
the Project to be completed, including construction of the "loop" portion ofthe Water
Project. If the City does not obtain the PVLC Easement prior to the date that the
Project is otherwise completed (that is, completion of all of the Project except for the
"loop" portion of the Water Project to be located in the PVLC Easement), then the
City need not deposit the remaining $40,000.00 but shall nevertheless accept the
Project (without the "loop" portion of the Water Project) pursuant to the terms of the
Construction Contract and this Agreement (including without limitation Section 5(a)
hereof).
(ii) The Escrow Agent will hold the City's Deposit and disburse for use in
paying the Costs in accordance with this Agreement and in accordance with the
Escrow Agreement. Within ten (10) business days from the date of completion of the
Project and acceptance thereof by the City, the City shall execute with the Developers
a document accepting title and ownership of the Project. For purposes of this
Agreement, and subject to all of the provisions hereof, including the possibility that
2
the "loop" portion of the Water Project will not be constructed as part of the Project
if the City does not timely obtain the PVLC Easement, the Project shall be completed
when the City's Director of Public Works and the Developer's Engineer certify in
writing that the work involved in the Project has been completed in accordance with
the plans and specifications for the Project."
2. Section 4(c) of the Agreement is hereby deleted in its entirety, and the following is
substituted in its place:
"(c) Acquisition of Right -of -Way. As set forth in Section 12 hereof, the Developers
will grant certain easements identified by the Project Engineer as necessary for the
construction of the Project. The Developers will grant other easements as needed if
the Project Engineer demonstrates that such easements are necessary for the
construction of the Project. The City agrees to pursue acquisition of an easement
across the property of the Palm Valley Lutheran Church (the "PVLC Easement ") for
purposes of constructing and/or completing a water line "loop" to connect to the
Water Project."
3. Section 4(d) of the Agreement is hereby deleted in its entirety, and the following
substituted in its place:
"(d) Construction Contract. Subject to the Developers first depositing their respective
share of the Costs into the Escrow Account, pursuant to Section 2 hereof, and then
promptly thereafter, the Project Manager will enter into a Construction Contract (the
"Construction Contract ") with the selected bidder for the construction ofthe Project,
for a contract amount estimated to be $578,130.50. The Project Manager shall solicit
bids for the Construction Contract, and shall choose the low bid from at least three
(3) bids from qualified bidders. If the Project Manager wants to accept other than the
low bid, such other bid must be approved by at least that number of Developers who
are obligated to pay 65% of the Costs hereunder in the aggregate. The Construction
Contract shall be a fixed price contract. The contractor to which the Construction
Contract is awarded by the Project Manager shall obtain and maintain an adequate
payment and performance bond for the Project. Notwithstanding any other provision
to the contrary, and as will be set out in the Construction Contract, in the event that
the City does not obtain the PVLC Easement before the Project is otherwise
completed such that the "loop" portion of the Water Project is not constructed as part
of the Project, as described in Section 2(b)(i) hereof, the amount of the Construction
Contract shall be reduced by the amount of$12,000.00 and the Project Contribution
of (and any refund thereof to) each of the Developers will be adjusted accordingly."
4. Section 5(a) of the Agreement is deleted in its entirety, and the following substituted
in its place:
3
5. Capitalised terms not otherwise defined in this First Amendment shall have the
meanings ascribed to them in the Agreement.
6. Except as amended hereby, the Agreement as originally written remains in full
force and effect.
7. This First Amendment may be executed in multiple counterparts, which, when
combined together, shall constitute an original of this First Amendment. In addition,
facsimile signatures of the parties shall be effective on all counterparts of this First
Amendment.
8. This First Amendment, together with the Agreement, embodies the entire
agreement of the parties hereto, and is binding upon and inures to the benefit of the parties
to this First Amendment and their respective heirs, executors, administrators, personal
representatives, legal representatives, successors and assigns and incorporates all previous
correspondence or communication, whether written or oral. The Agreement, as amended
hereby, can only be further modified or varied by written instrument subscribed to by all
parties hereto.
Executed to be effective PpR IL /0 , 2003.
"5. 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 Inspection and Review. The City agrees to expedite the review of all
Plans submitted for the Project, and further agrees to promptly inspect and accept the
Project during and after construction, subject to the terms and conditions hereof
including the requirement that the Project be built according to the Plans. The City
further agrees that if the PVLC Easement is not obtained, whether before or after the
date the Project is otherwise complete as described in Section 2(b)(i) hereof, the City
will not for that reason withhold, condition, or delay (i) approval or acceptance of the
Project, (ii) approval of any plat, plan, building permit, certificate of occupancy, or
other permit pertaining to the development of the tracts identified in Recital I hereof,
or (iii) approval of water and wastewater connections or otherwise withhold,
condition, or delay water or wastewater service to such tracts."
4
Highland ;' agement,
By:
Name:
Title: ¥ c 4 - 'Octtak O +t rl r
M &ME. s IV, Inc.
By:
Nam - .' r14.1 ✓/N ' 46
Title: AAA t
EMI Leasing Partners, LP
By:
By:
Name: Q n,v, e c "
Title: > `'� `� � """ / T (u)
Church of t of R and Rock
The City of
By:
Name:
Title: /7)4yob
, its general partner
J
5
FIRST AMENDMENT TO
COST SHARING AND REIMBURSEMENT AGREEMENT
THIS FIRST AMENDMENT TO COST SHARING AND REIMBURSEMENT AGREEMENT (this "First
Amendment ") is executed to be effective the 10 day of IL , 2003, by and among. H.E.
Butt Grocery Company, a Texas corporation ( "HEB "), 1460 Partners, Ltd., a Texas
limited partnership ( "1460 Partners "), 54 Acres Ltd., a Texas limited partnership ( "54
Acres "), Highland Management, Inc., a Texas corporation ( "Highland"), M &M Equities
W, Inc., a Texas corporation ( "M&M"), EMI Leasing Partners, LP, a Texas limited
partnership ( "EMI "), Church of Christ of Round Rock, a ("Church"), Heritage
Title Company of Austin, Inc., a Texas corporation ( "Escrow Agent"), and The City of
Round Rock, a Texas municipal corporation (the "City").
Recitals:
au cLU
I. The parties entered into that certain Cost Sharing and Reimbursement Agreement dated
effective 3-,Q1-, 2003 (the Agreement") regarding the funding and construction of
certain water and wastewater line improvements, as more particularly described therein.
II. The Agreement provides that the City will pursue acquisition of an easement across the
property of the Palm Valley Lutheran Church (the "PVLC Easement ") for purposes of
constructing and/or completing a water line "loop ", as more particularly described in the
Agreement.
III. The Agreement provides that the City will deposit $91, 073.37 into the Escrow Account
as the City's Project Contribution, as those terms are defined in the Agreement.
IV. The parties want to enter into this First Amendment to evidence their new agreement
regarding the PVLC Easement and the amount of money that the City will be required to
deposit, and its uses, all as set forth in this First Amendment.
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants and benefits herein contained, the parties hereby covenant and agree as
follows:
1. Sections 2(a) and (b) of the Agreement are hereby deleted in their entirety, and the
following substituted in their place:
"(a) Project Contribution. The Developers agree that their respective contributions,
as well as the number of LUEs each Developer has that will be served by the Project,
shall be as set forth on the Schedule. Within 15 days after the date this Agreement is
fully executed, each Developer will deposit its applicable contribution into the Escrow
Account, such amounts being set forth on the Schedule (with respect to each
Developer and the City, its "Project Contribution "). The City hereby agrees that as
of the date of this Agreement, there is and shall be reserved to each affected property
o: \wdox \CORR \gaIWWr 00046525.DOC
R-03-04-10-1X1
Agreement:
1
Account, such amounts being set forth on the Schedule (with respect to each
Developer and the City, its "Project Contribution "). The City hereby agrees that as
of the date of this Agreement, there is and shall be reserved to each affected property
hereunder at least the number of LUE's of water and wastewater service, as
applicable, as set forth on the Schedule, and further agrees that the City shall provide
such service (including allowing all connections required therefor) conditioned only
upon completion of the Project. If all of the Project Contributions required by this
Section 2 are not deposited into the Escrow Account as described herein, then this
Agreement will be automatically terminated, and any Project Contributions previously
deposited will be returned. However, all Developers who have made their Project
Contributions may, in the exercise of their sole discretion, by written amendment to
this Agreement, agree to absorb the Project Contributions of any non - contributing
Developer, and proceed with the Project.
(b) Funding of Contribution by the City.
(i) The City agrees that within 60 days after the Construction Contract (as
defined in Section 4.(d) hereof) for the Project is executed in accordance with and
pursuant to this Agreement, the City shall deposit with the Escrow Agent a single
lump sum payment in the amount of $91, 073.37 or thirty percent (30 %) of the total
contract price, whichever amount is less as set forth on the Schedule (the "City's
Deposit"), provided, however, that notwithstanding the foregoing, if on the date that
the City's Deposit is due hereunder the City has not yet obtained the PVLC Easement
for the "loop" portion of the Water Project (as defined and described in Section 4(c)
hereof), then the City may instead deposit only $51,073.37 with the Escrow Agent,
and retain the remaining $40,000.00 of its Project Contribution until such time as the
City obtains the PVLC Easement. If the City obtains the PVLC Easement prior to the
date that the Project is otherwise completed, then the City shall immediately deposit
the remaining $40,000.00 with the Escrow Agent, and the Project Manager will cause
the Project to be completed, including construction ofthe "loop" portion ofthe Water
Project. If the City does not obtain the PVLC Easement prior to the date that the
Project is otherwise completed (that is, completion of all of the Project except for the
"loop" portion of the Water Project to be located in the PVLC Easement), then the
City need not deposit the remaining $40,000.00 but shall nevertheless accept the
Project (without the "loop" portion of the Water Project) pursuant to the terms ofthe
Construction Contract and this Agreement (including without limitation Section 5(a)
hereof).
(ii) The Escrow Agent will hold the City's Deposit and disburse for use in
paying the Costs in accordance with this Agreement and in accordance with the
Escrow Agreement. Within ten (10) business days from the date of completion ofthe
Project and acceptance thereof by the City, the City shall execute with the Developers
a document accepting title and ownership of the Project. For purposes of this
Agreement, and subject to all of the provisions hereof; including the possibility that
2
the `loop" portion of the Water Project will not be constructed as part of the Project
if the City does not timely obtain the PVLC Easement, the Project shall be completed
when the City's Director of Public Works and the Developer's Engineer certify in
writing that the work involved in the Project has been completed in accordance with
the plans and specifications for the Project."
2. Section 4(c) of the Agreement is hereby deleted in its entirety, and the following is
substituted in its place:
"(c) Acquisition of Right -of -Way. As set forth in Section 12 hereof the Developers
will grant certain easements identified by the Project Engineer as necessary for the
construction of the Project. The Developers will grant other easements as needed if
the Project Engineer demonstrates that such easements are necessary for the
construction of the Project. The City agrees to pursue acquisition of an easement
across the property of the Palm Valley Lutheran Church (the'"PVLC Easement ") for
purposes of constructing and/or completing a water line `loop" to connect to the
Water Project."
3. Section 4(d) of the Agreement is hereby deleted in its entirety, and the following
substituted in its place:
"(d) Construction Contract. Subject to the Developers first depositing their respective
share of the Costs into the Escrow Account, pursuant to Section 2 hereof, and then
promptly thereafter, the Project Manager will enter into a Construction Contract (the
"Construction Contract") with the selected bidder for the construction ofthe Project,
for a contract amount estimated to be $578,130.50. The Project Manager shall solicit
bids for the Construction Contract, and shall choose the low bid from at least three
(3) bids from qualified bidders. If the Project Manager wants to accept other than the
low bid, such other bid must be approved by at least that number of Developers who
are obligated to pay 65% of the Costs hereunder in the aggregate. The Construction
Contract shall be a fixed price contract. The contractor to which the Construction
Contract is awarded by the Project Manager shall obtain and maintain an adequate
payment and performance bond for the Project. Notwithstanding any other provision
to the contrary, and as will be set out in the Construction Contract, in the event that
the City does not obtain the PVLC Easement before the Project is otherwise
completed such that the "loop" portion of the Water Project is not constructed as part
of the Project, as described in Section 2(b)(i) hereof the amount of the Construction
Contract shall be reduced by the amount of $12,000.00 and the Project Contribution
of (and any refund thereof to) each of the Developers will be adjusted accordingly."
4. Section 5(a) of the Agreement is deleted in its entirety, and the following substituted
in its place:
3
"5. 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 Inspection and Review. The City agrees to expedite the review of all
Plans submitted for the Project, and further agrees to promptly inspect and accept the
Project during and after construction, subject to the terms and conditions hereof
including the requirement that the Project be built according to the Plans. The City
further agrees that if the PVLC Easement is not obtained, whether before or after the
date the Project is otherwise complete as described in Section 2(b)(i) hereof the City
will not for that reason withhold, condition, or delay (i) approval or acceptance of the
Project, (ii) approval of any plat, plan, building permit, certificate of occupancy, or
other permit pertaining to the development of the tracts identified in Recital I hereof,
or (iii) approval of water and wastewater connections or otherwise withhold,
condition, or delay water or wastewater service to such tracts."
5. Capitalized terms not otherwise defined in this First Amendment shall have the
meanings ascribed to them in the Agreement.
6. Except as amended hereby, the Agreement as originally written remains in full
force and effect.
7. This First Amendment may be executed in multiple counterparts, which, when
combined together, shall constitute an original of this First Amendment. In addition,
facsimile signatures of the parties shall be effective on all counterparts of this First
Amendment.
8. This First Amendment, together with the Agreement, embodies the entire
agreement of the parties hereto, and is binding upon and inures to the benefit of the parties
to this First Amendment and their respective heirs, executors, administrators, personal
representatives, legal representatives, successors and assigns and incorporates all previous
correspondence or communication, whether written or oral. The Agreement, as amended
hereby, can only be further modified or varied by written instrument subscribed to by all
parties hereto.
Executed to be effective n nQW /0 , 2003.
H.E. Butt Grocery Company
By
Name:
Title:
4
FM 1460 Partners, Ltd.
By: , its general partner
By:
Name:
Title:
54 Acres Ltd.
By:
By:
Name:
Title:
Highland Management, Inc.
By:
Name:
Title:
M &M Equities IV, Inc.
By:
Name:
Title:
EMI Leasing Partners, LP
By: � /,4.4 y / -4 4, its general partner
By:
Name
Title:
Church of Christ of Round Rock
By
Name:
Title:
its general partner
5
DATE: July 10, 2003
MEMORANDUM
TO: Christine R. Martinez
FROM: Veronica Rivera \
SUBJECT: Water & Wastewater Easements, Releases and First Amendment to the Cost
Sharing and Reimbursement Agreement
Enclosed for your files please find the original recorded Water and Wastewater Easement
documents granted by the parties to the Cost Sharing and Reimbursement Agreement
approved by City Council under Resolution No. R- 03- 03- 27 -9I2; copies of the Release of
Easement documents granted by the City for easements recorded in error; and the original
First Amendment to the Cost Sharing and Reimbursement Agreement document approved
by City Council under Resolution No. R- 03- 04- 10 -12C1.
@PFDesktop \:ODMAAVORLDOX/O:/ WDOX /CORR/GNUHWY79AGR/00052781.WPD1 r
0 \wd \RESOLOZT \R3O41DC /SC
RESOLUTION NO. R- 03- 04- 10 -12C1
WHEREAS, by Resolution No. R- 03- 03- 27 -9I2 the City Council
authorized the execution by the Mayor of a Cost Sharing and
Reimbursement Agreement ( "Agreement ") with H.E. Butt Grocery Company,
FM 1460 Partners, Ltd., 54 Acres Ltd., Highland Management, Inc., M &M
Equities IV, Inc., EMI Leasing Partners, LP, Church of Christ of Round
Rock, and Heritage Title Company of Austin, concerning the development
of 10 tracts of land totaling 236.11 acres, and
WHEREAS, the parties to the Agreement wish to amend the Agreement
with respect to the provisions related to an easement across the
property of Palm Valley Lutheran Church and related to the amount of
money the City will deposit in the Escrow Account as the City's
Contribution, and
WHEREAS, the parties desire to enter the First Amendment to Cost
Sharing and Reimbursement Agreement ( "First Amendment "), Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City the First Amendment to Cost Sharing and
Reimbursement Agreement, Inc. with H.E. Butt Grocery Company, FM 1460
Partners, Ltd., 54 Acres Ltd., Highland Management, Inc., M &M Equities
IV, Inc., EMI Leasing Partners, LP, Church of Christ of Round Rock, and
Heritage Title Company of Austin„ a copy of same being attached hereto
as Exhibit "A" and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of
the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to the
public as required by law at all times during which this Resolution and
the subject matter hereof were discussed, considered and formally acted
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended.
RESOLVED this 10th day of April, 2003.
i
A(EST:
, luuatvn,vie
CHRISTINE R. MARTINEZ, City Secretar
2
City of Round Rock, Texas
FIRST AMENDMENT TO
COST SHARING AND REIMBURSEMENT AGREEMENT
THIS FIRST AMENDMENT TO COST SHARING AND REIMBURSEMENT AGREEMENT (this "First
Amendment") is executed to be effective the _ day of , 2003, by and among H.E.
Butt Grocery Company, a Texas corporation ( "HEB "), FM 1460 Partners, Ltd., a Texas
limited partnership ( "1460 Partners "), 54 Acres Ltd., a Texas limited partnership ( "54
Acres "), Highland Management, Inc., a Texas corporation ( "Highland "), M &M Equities
IV, Inc., a Texas corporation ("M&M"), EMI Leasing Partners, LP, a Texas limited
partnership ( "EMI"), Church of Christ of Round Rock, a ( "Church "), Heritage
Title Company of Austin, Inc., a Texas corporation ( "Escrow Agent"), and The City of
Round Rock, a Texas municipal corporation (the "City ").
Recitals:
I. The parties entered into that certain Cost Sharing and Reimbursement Agreement dated
effective , 2003 (the Agreement') regarding the funding and construction of
certain water and wastewater line improvements, as more particularly described therein.
II. The Agreement provides that the City will pursue acquisition of an easement across the
property of the Palm Valley Lutheran Church (the "PVLC Easement ") for purposes of
constructing and/or completing a water line "loop ", as more particularly described in the
Agreement.
III. The Agreement provides that the City will deposit $91, 073.37 into the Escrow Account
as the City's Project Contribution, as those terms are defined in the Agreement.
IV. The parties want to enter into this First Amendment to evidence their new agreement
regarding the PVLC Easement and the amount of money that the City will be required to
deposit, and its uses, all as set forth in this First Amendment.
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants and benefits herein contained, the parties hereby covenant and agree as
follows:
O:\ wdox \CORR \ gullhay79agt \00046525.DOC
Agreement:
1. Sections 2(a) and (b) of the Agreement are hereby deleted in their entirety, and the
following substituted in their place:
"(a) Project Contribution. The Developers agree that their respective contributions,
as well as the number of LUEs each Developer has that will be served by the Project,
shall be as set forth on the Schedule. Within 15 days after the date this Agreement is
fully executed, each Developer will deposit its applicable contribution into the Escrow
Account, such amounts being set forth on the Schedule (with respect to each
Developer and the City, its "Project Contribution "). The City hereby agrees that as
of the date of this Agreement, there is : . I . I : : + h affected property
EXHIBIT
Account, such amounts being set forth on the Schedule (with respect to each
Developer and the City, its "Project Contribution "). The City hereby agrees that as
of the date of this Agreement, there is and shall be reserved to each affected property
hereunder at least the number of LUE's of water and wastewater service, as
applicable, as set forth on the Schedule, and further agrees that the City shall provide
such service (including allowing all connections required therefor) conditioned only
upon completion of the Project. If all of the Project Contributions required by this
Section 2 are not deposited into the Escrow Account as described herein, then this
Agreement will be automatically terminated, and any Project Contributions previously
deposited will be returned. However, all Developers who have made their Project
Contributions may, in the exercise of their sole discretion, by written amendment to
this Agreement, agree to absorb the Project Contributions of any non - contributing
Developer, and proceed with the Project.
(b) Funding of Contribution by the City.
(i) The City agrees that within 60 days after the Construction Contract (as
defined in Section 4.(d) hereof) for the Project is executed in accordance with and
pursuant to this Agreement, the City shall deposit with the Escrow Agent a single
lump sum payment in the amount of $91, 073.37 or thirty percent (30 %) of the total
contract price, whichever amount is less as set forth on the Schedule (the "City's
Deposit "), provided, however, that notwithstanding the foregoing, if on the date that
the City's Deposit is due hereunder the City has not yet obtained the PVLC Easement
for the `loop" portion of the Water Project (as defined and described in Section 4(c)
hereof), then the City may instead deposit only $51,073.37 with the Escrow Agent,
and retain the remaining $40,000.00 of its Project Contribution until such time as the
City obtains the PVLC Easement. If the City obtains the PVLC Easement prior to the
date that the Project is otherwise completed, then the City shall immediately deposit
the remaining $40,000.00 with the Escrow Agent, and the Project Manager will cause
the Project to be completed, including construction of the `loop" portion ofthe Water
Project. If the City does not obtain the PVLC Easement prior to the date that the
Project is otherwise completed (that is, completion of all of the Project except for the
"loop" portion of the Water Project to be located in the PVLC Easement), then the
City need not deposit the remaining $40,000.00 but shall nevertheless accept the
Project (without the `loop" portion of the Water Project) pursuant to the terms ofthe
Construction Contract and this Agreement (including without limitation Section 5(a)
hereof).
(ii) The Escrow Agent will hold the City's Deposit and disburse for use in
paying the Costs in accordance with this Agreement and in accordance with the
Escrow Agreement. Within ten (10) business days from the date of completion ofthe
Project and acceptance thereof by the City, the City shall execute with the Developers
a document accepting title and ownership of the Project. For purposes of this
Agreement, and subject to all of the provisions hereof, including the possibility that
2
the "loop" portion of the Water Project will not be constructed as part of the Project
if the City does not timely obtain the PVLC Easement, the Project shall be completed
when the City's Director of Public Works and the Developer's Engineer certify in
writing that the work involved in the Project has been completed in accordance with
the plans and specifications for the Project."
2. Section 4(c) of the Agreement is hereby deleted in its entirety, and the following is
substituted in its place:
"(c) Acquisition of Right -of -Way. As set forth in Section 12 hereof, the Developers
will grant certain easements identified by the Project Engineer as necessary for the
construction of the Project. The Developers will grant other easements as needed if
the Project Engineer demonstrates that such easements are necessary for the
construction of the Project. The City agrees to pursue acquisition of an easement
across the property of the Palm Valley Lutheran Church (the "PVLC Easement ") for
purposes of constructing and/or completing a water line "loop" to connect to the
Water Project."
3. Section 4(d) of the Agreement is hereby deleted in its entirety, and the following
substituted in its place:
"(d) Construction Contract. Subject to the Developers first depositing their respective
share of the Costs into the Escrow Account, pursuant to Section 2 hereof; and then
promptly thereafter, the Project Manager will enter into a Construction Contract (the
"Construction Contract ") with the selected bidder for the construction ofthe Project,
for a contract amount estimated to be $578,130.50. The Project Manager shall solicit
bids for the Construction Contract, and shall choose the low bid from at least three
(3) bids from qualified bidders. Ifthe Project Manager wants to accept other than the
low bid, such other bid must be approved by at least that number of Developers who
are obligated to pay 65% of the Costs hereunder in the aggregate. The Construction
Contract shall be a fixed price contract. The contractor to which the Construction
Contract is awarded by the Project Manager shall obtain and maintain an adequate
payment and performance bond for the Project. Notwithstanding any other provision
to the contrary, and as will be set out in the Construction Contract, in the event that
the City does not obtain the PVLC Easement before the Project is otherwise
completed such that the "loop" portion ofthe Water Project is not constructed as part
of the Project, as described in Section 2(b)(i) hereof the amount of the Construction
Contract shall be reduced by the amount of $12,000.00 and the Project Contribution
of (and any refund thereof to) each of the Developers will be adjusted accordingly."
4. Section 5(a) of the Agreement is deleted in its entirety, and the following substituted
in its place:
3
5. Capitaliv d terms not otherwise defined in this First Amendment shall have the
meanings ascribed to them in the Agreement.
6. Except as amended hereby, the Agreement as originally written remains in full
force and effect.
7. This First Amendment may be executed in multiple counterparts, which, when
combined together, shall constitute an original of this First Amendment. In addition,
facsimile signatures of the parties shall be effective on all counterparts of this First
Amendment.
8. This First Amendment, together with the Agreement, embodies the entire
agreement of the parties hereto, and is binding upon and inures to the benefit of the parties
to this First Amendment and their respective heirs, executors, administrators, personal
representatives, legal representatives, successors and assigns and incorporates all previous
correspondence or communication, whether written or oral. The Agreement, as amended
hereby, can only be further modified or varied by written instrument subscribed to by all
parties hereto.
Executed to be effective , 2003.
H.E. Butt Grocery Company
By
Name:
Title:
"5. 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 Inspection and Review. The City agrees to expedite the review of all
Plans submitted for the Project, and further agrees to promptly inspect and accept the
Project during and after construction, subject to the terms and conditions hereof
including the requirement that the Project be built according to the Plans. The City
further agrees that if the PVLC Easement is not obtained, whether before or after the
date the Project is otherwise complete as described in Section 2(b)(i) hereof the City
will not for that reason withhold, condition, or delay (i) approval or acceptance of the
Project, (ii) approval of any plat, plan, building permit, certificate of occupancy, or
other permit pertaining to the development of the tracts identified in Recital I hereof,
or (iii) approval of water and wastewater connections or otherwise withhold,
condition, or delay water or wastewater service to such tracts."
4
FM 1460 Partners, Ltd.
By: , its general partner
By:
Name:
Title:
54 Acres Ltd.
By: , its general partner
By:
Name:
Title:
Highland Management, Inc.
By:
Name:
Title:
M &M Equities P/, Inc.
By:
Name:
Title:
EMI Leasing Partners, LP
By: , its general partner
By:
Name:
Title:
Church of Christ of Round Rock
By:
Name:
Title:
The City of Round Rock
By:
Name:
Title:
5
DATE: April 4, 2003
SUBJECT: City Council Meeting — April 10, 2003
ITEM: 12.C.1. Consider a resolution authorizing the Mayor to execute First Amendment
to Cost Sharing and Reimbursement Agreement with H.E. Butt Grocery
Company, FM 1460 Partners, Ltd., 54 Acres Ltd., Highland Management,
Inc., M &MEquities IV, Inc., EMI Leasing Partners, LP, Church of
Christ of Round Rock, and Heritage Title Company of Austin concerning
the development of 10 tracts of land totaling 236.11 acres.
Resource: Tom Clark, Director of Utilities
Steve Sheets, City Attorney
History: At the last Council meeting the Council approved a Cost Sharing and Reimbursement
Agreement with seven property owners near the intersection of FM1460 and US 79
regarding the construction of utility system improvements. At the time, it was anticipated
that the Agreement would need to be amended to reflect changed provisions with respect to
an easement that was needed from the Palm Valley Lutheran Church and the amount of
money the City was going to deposit as its share of the cost. The amendments are needed
because it is now doubtful that the easement required from Palm Valley Lutheran Church
will be acquired in time for the property owners contractor to complete a water line across
the Church property. hi that event, the City or others will complete the construction of a
relatively small portion of the water line at a later time. Therefore the amount of money
contributed by the City, as part of the Agreement will reduced from $91,073.27 to
$51,073.37. The remaining $40,000 will be utilized by the City to complete the lines in the
future, when the easement is acquired.
Funding:
Cost: $51,073.37
Source of funds: Capital Project Funds (self - financed utility)
Outside Resources: H.E.B Grocery Company, FM 1460 Partners Ltd., 54 Acres Ltd., Highland
Management, Inc., M &M Equities IV, Inc., Church of Christ of Round Rock,
and Heritage Title Company of Austin, Inc.
Impact: N/A
Benefit: Participation in the utilities for the development will save future City dollars
Public Comment: N/A
Sponsor: N/A
mt No_I w /Coulter Engineering for design of
Deed o ot f Drive Sin. waterline improvements.
Ueer(
STATE OF TEXAS §
THE COUNTY OF WILLIAMSON
SUPPLEMENTAL AGREEMENT NO. # 1
TO CONTRACT FOR ENGINEERING SERVICES
This Amendment to the Contract for Engineering Services is made by and between the City of
Round Rock, Texas, hereinafter called the "City" and Coulter Engineering, Inc., hereinafter
called the "Engineer".
WHEREAS, the City and Engineer executed a Contract for Engineering Services, hereinafter
called the "Contract ", on the 26 of November, 2002 to design the Deerfoot Drive 8 -inch Water
Line Improvements and
WHEREAS, ARTICLE 2, SCOPE OF SERVICES TO BE PROVIDED BY ENGINEER,
describes those engineering services to be provided by the Engineer as a part of the Contract, and
WHEREAS, ARTICLE 3, CONTRACT PERIOD, requires the termination of the Contract on
June 9,2003 unless the Contract is extended, and
WHEREAS, ARTICLE 4, COMPENSATION, establishes the maximum lump sum payable
under this contract at $7,975.00 without modification of the contract, and
WHEREAS, it has become necessary to amend the contract to provide for Preparation of Field
Notes and Sketches for four (4) Public Utility Easements (P.U.E.$) including one day of survey
crew field work, and
WHEREAS, the Engineer has agreed to have the additional work performed for $4,500.00 in-
creasing the lump sum fee for the contract to $12,475.00.
NOW THEREFORE, premises considered, the City and the Engineer agree that said Contract
is amended as follows:
ARTICLE 3, CONTRACT PERIOD, shall be amended to extend the contract period to Decem-
ber 9, 2003, and
ARTICLE 4, COMPENSATION, shall be amended by changing the lump sum amount payable
under this contract as $12,475.00.
ATTACHMENT "B ", Services to be Provided by the Engineer shall be amended as set forth in
the attached ADDENDUM to EXHIBIT B.
R- o3- 0y- io -iac3
\\Naomi2\ce \COULTER ENGINEERING \CE PROJECTS\109 City of Round Rock -014 Deerfoot Waterline \Documents\Supplemntal
Agreement \S,,pplemental%20Agreeno nt%20E- 19[1].doc
Page 1 of 2
ti
ADDENDUM #1 TO EXHIBIT `B"
Additional services to be provided under this agreement are:
1. One day field work for GPS equipped survey crew.
2. Four (4) sets field notes and sketches for acquisition of easements on the
following lots:
Lot 9, Block A, Dove Creek Section One
Lot 1, Block D, Dove Creek Section One
Lots 8 &9, Block D, Dove Creek Section Two
IN WITNESS WHEREOF, the City and the Engineer have executed Supplemental Agreement
in duplicate.
THE ENGINEE
a t o ll VA N
P.E., President
3
Date
SupplenwnlaI Agr Fomidoclspecs nmster /wnbacts & forms— Revised 10/2/02
Page 2 of 2
I
Date: March 25, 2003
To: Mr. Don Rundell, P.E.
Senior Utility Engineer
City of Round Rock, Texas
Re: Deerfoot Drive Supplemental Engineering Agreement
cc:
Dear Don:
Attached are two (2) originals of the referenced supplement to our original agreement.
The easement documents will be prepared by a third party Registered Public Land Surveyor once
the document is executed.
Please call 512- 248 -1800 with any questions or comments.
Regards,
iM
James B. Coulter, P.E.
Coulter Engineering, Inc.
o
slgl
neering
600 ROUND ROCK WEST DRIVE, SUITE 101
ROUND ROC)[, TEXA010601
FlICNE, (612) 246 -1000 Nor. (612) 246-.03
TRANSMITTAL
Phone: 512- 248 -1800 Fax: 512- 248 -9903
Mayor
Nyle Maxwell
Mayor Pro
Tom Nielson
Council Members
Alan McGraw
Carrie Pitt
Scot Knight
Isabel Gallahan
Gary Coe
City Manager
Jim Nuse
City Attorney
Stephan L Sheets
D ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY.
May 13, 2003
James B. Coulter, P.E.
Coulter Engineering, Inc.
600 Round Rock West Drive, Suite 101
Round Rock, TX 78681
Enclosure
Dear Mr. Coulter:
Christine R. Martinez
City Secretary
The Round Rock City Council approved Resolution No. R- 03- 04 -10-
12C3 at their regularly scheduled meeting on April 10, 2003. This
resolution approves the agreement for Engineering Services for the
design of the Deerfoot Drive 8 -inch Water Line Improvements.
Enclosed is a copy of the resolution and original agreement for your
files. If you have any questions, please do not hesitate to contact Tom
Clark at 341 -3146.
CITY OF ROUND ROCK Administrative Dept., 221 East Main Street • Round Rock, Texas 78664
Phone: 512.218.5400 • Fax: 512.218.7097 • www.ci.round- rock.tx,us
RESOLUTION NO. R- 03- 04- 10 -12C3
WHEREAS, the City of Round Rock has previously entered into an
Agreement for Engineering Services ( "Agreement ") with Coulter
Engineering, Inc. for the design of the Deerfoot Drive 8 -inch Waterline
Improvements, and
WHEREAS, Coulter Engineering, Inc. has submitted Supplemental
Agreement No. 1 to the Agreement for a change in the scope of services,
and
WHEREAS, the City Council desires to enter into said Supplemental
Agreement No. 1 with Coulter Engineering, Inc., 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 Supplemental Agreement No. 1 to the Agreement with
Coulter Engineering, Inc., a copy of said Supplemental Agreement No. 1
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.
o: \ = \R es01.,1\R3 oaiac3.weo /cc
A EST:
RESOLVED this loth day of April, 2003.
be
CHRISTINE R. MARTINEZ, City Secretary
2
LL, Mayor
City of Round Rock, Texas
STATE OF TEXAS
THE COUNTY OF WILLIAMSON
EXHIBIT
I nAn
SUPPLEMENTAL AGREEMENT NO. # 1
TO CONTRACT FOR ENGINEERING SERVICES
This Amendment to the Contract for Engineering Services is made by and between the City of
Round Rock, Texas, hereinafter called the "City" and Conker Engineering, Inc., hereinafter
called the "Engineer".
WHEREAS, the City and Engineer executed a Contract for Engineering Services, hereinafter
called the "Contract ", on the 26 of November, 2002 to design the Deerfoot Drive 8-inch Water
Line Improvements and
WHEREAS, ARTICLE 2, SCOPE OF SERVICES TO BE PROVIDED BY ENGINEER,
describes those engineering services to be provided by the Engineer as a part of the Contract, and
WHEREAS, ARTICLE 3, CONTRACT PERIOD, requires the termination of the Contract on
June 9,2003 unless the Contract is extended, and
WHEREAS, ARTICLE 4, COMPENSATION, establishes the maximum lump sum payable
under this contract at $7,975.00 without modification of the contract, and
WHEREAS, it has become necessary to amend the contract to provide for Preparation of Field
Notes and Sketches for four (4) Public Utility Easements (P.U.E.$) including one day of survey
crew field work, and
WHEREAS, the Engineer has agreed to have the additional work performed for $4,500.00 in-
creasing the lump sum fee for the contract to $12,475.00.
NOW THEREFORE, premises considered, the City and the Engineer agree that said Contract
is amended as follows:
ARTICLE 3, CONTRACT PERIOD, shall be amended to extend the contract period to Decem-
ber 9, 2003, and
ARTICLE 4, COMPENSATION, shall be amended by changing the lump sum amount payable
under this contract as $12,475.00.
ATTACHMENT "B ", Services to be Provided by the Engineer shall be amended as set forth in
the attached ADDENDUM to EXHIBIT B.
\\Naomi2lce\COULTER ENGINEERING\CE PROJECTS \109 City of Round Rork \-014 Deerfoot Waterline \Documents\Supptemntal
ou\ Supplemanial%20Agrecment %20F -19[ I].doc
Page 1 of 2
IN WITNESS WHEREOF, the City and the Engineer have executed Supplemental Agreement
in duplicate.
3 -Z4 - o3
CITY OF ROUND ROCK
Date
By:
Nyle Maxwell, Mayor
Date
Supplemental Agr Formdoc/specs muster/contracts & fame— Revised 10/2/02
Page 2 of 2
ADDENDUM #1 TO EXHIBIT `B"
Additional services to be provided under this agreement are:
1. One day field work for GPS equipped survey crew.
2. Four (4) sets field notes and sketches for acquisition of easements on the
following lots:
Lot 9, Block A, Dove Creek Section One
Lot 1, Block D, Dove Creek Section One
Lots S&9, Block D, Dove Creek Section Two
WHITE WINE: WAY
PROPOSED
8" PVC WATERLINE
DOVE CREEK DR
N
W I l ' i E
S
Deerfoot 8 Inch Waterline
? w n °R .n om
DATE: April 4, 2003
SUBJECT: City Council Meeting — April 10, 2003
ITEM: *12.C.3. Consider a resolution authorizing the Mayor to execute Supplemental
Agreement No. 1 to Contract for Engineering Services with Coulter
Engineering, Inc. for the design of the Deerfoot Drive 8 -inch Waterline
Improvements.
Resource: Tom Clark, Director of Utilities
History: The existing water line is located in the west right -of -way of Deerfoot Drive. Coulter
Engineering is designing a replacement line that will be located in the east right of way.
By installing an 8 -inch water line along the east right -of -way of Deerfoot Drive we will
improve future accessibility, water system capacity and reliability on Deerfoot Drive.
Easements to facilitate this replacement are not in place on the east side of the Road.
The additional services under this supplemental agreement will provide permanent and
temporary easements documents for the construction and future maintenance of the new
8 -inch water line. The total fee for these services is $4,500.00 increasing the total
contract fee to $12,475.00
Funding:
Cost: $4,500.00
Source of funds: Capital Project Funds (Self - Financed Utility)
Outside Resources: Coulter Engineering, Inc.
ImpactBenefit: To improve flow and reliability of our water system in the Dove Creek
area.
Public Comment: N/A
Sponsor: N/A