R-90-1443 - 4/26/1990ATTEST:
J
RSO4260G
LAND, City Secretary
RESOLUTION NO. / /lJ
f .
WHEREAS, Franklin Capital Corporation ( "Franklin ") and the City
of Round Rock on November 7, 1988 entered into that one certain
Franklin 582 Water 'And Wastewater Service Agreement ( "1988
Agreement "), and
WHEREAS, since the 1988 Agreement, the Franklin Tract has been
annexed into the City and Franklin has donated 170 acres to the City
for a golf course, and
WHEREAS, the construction at this time of some of the water
improvements included in the 1988 agreement would result in cost
savings to the City as well as providing water service to the Franklin
Tract and golf course, and
WHEREAS, Franklin and City now wish to amend, revise and clarify
said 1988 Agreement, Now Therefore,
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City Council a Revised Agreement between Franklin and
the City, a copy of said Revised Amendment being attached hereto and
incorporated herein for all purposes.
RESOLVED this 26th day of April, 1990.
MIKE ROBINSON, Mayor
City of Round Rock, Texas
STATE OF TEXAS
.4 hem Revised Agreement is made and entered into on this . day of
PRI4 , 1990, by and between the City of Round Rock, Texas, a
home rule municipality ( "City ") and Franklin Capital Corporation, a
Texas corporation ( "Franklin ").
FRANKLIN 582 WATER AND WASTEWATER SERVICE AGREEMENT (REVISED)
COUNTY OF WILLIAMSON
GCWATER
Recitals
•r
WHEREAS, Franklin and City on November 7, 1988 entered into that
one certain Franklin 582 Water And Wastewater Service Agreement ( "1988
Agreement "), and
WHEREAS, since the 1988 Agreement, the Franklin Tract (as defined
in the Dedication Agreement as hereinafter defined) has been annexed
into the City and Franklin has donated 170 acres to the City for a golf
course, and
WHEREAS, the construction at this time of some of the water
improvements included in the 1988 Agreement would result in cost savings
to the City as well as providing water service to the Franklin Tract and
golf course, and
WHEREAS, Franklin and City now wishes to amend, revise, clarify,
supercede and restate in its entirety said 1988 Agreement, Now
Therefore, It Is Agreed As Follows:
Article I
Capacity Reserved
1.01. Capacity in System Improvements. The capacity of the water
and wastewater system improvements to be constructed shall be measured
in terms of Living Unit Equivalents (LUE's). A Water LUE is defined as
that unit of development which consumes the same amount of water as is
consumed by a detached single family dwelling unit. For the purpose of
this Revised Agreement, a Water LUE is deemed to consume an average of
four hundred eighty (480) gallons per day not to exceed a peak rate of
1.0 g.p.m. A Wastewater LUE is defined as that unit of development
which produces the same peak wet weather flow as is produced by a
detached single family dwelling unit. For the purpose of this Revised
Agreement, a Wastewater LUE is deemed to produce a peak wet weather flow
of three hundred fifty (350) gallons per day of wastewater.
Subject to the conditions stated in Article IV below, the City
agrees to reserve capacity for Franklin in the water and wastewater
improvements to be constructed in the amount of one thousand five
hundred (1,500) Water and Wastewater LUE's.
The number of LUE's for residential uses shall be determined as
follows:
TYPE OF
RESIDENTIAL UNIT
Single Family Detached 1.0
Duplex 0.9 per unit
Tri -plex, four -plex and
multi- family 0.7 per unit
The number of LUE's for commercial and industrial use shall be
determined in accordance with projected usage.
Franklin shall be entitled to allocate its LUE's to its tract, or
any portion thereof, as it deems advisable. In the event of transfer of
the tract, or any portion thereof, the City, unless notified as set
forth hereinafter, may deem that a pro rata number of LUE's are
transferred with the conveyed property in accordance with the ratio
between the area of the conveyed property to the total area of the
tract. Provided, however, Franklin may designate in writing to the City
the amount of LUE's transferred with the conveyance of any tract or any
portion thereof.
Franklin shall not be permitted to transfer or assign its right to
LUE's of line capacity except to any purchaser of its tract, or any
portion thereof.
1.02. No Plant Capacity Reserved. It is understood and agreed
that although Franklin will have reserved capacity in the water and
wastewater improvements contemplated herein, no capacity in the existing
or future treatment plants is being reserved. Available capacity in the
treatment plants will be allocated to users in the City's service area
on a "first come - first served" basis in accordance with the ordinances
and regulations of the City. The City acknowledges that it now has 8,333
LUE's of available capacity in its water treatment system and 6,570
LUE's of available capacity in the wastewater treatment plants. The
City agrees to notify Franklin at such time that the available capacity
in either the water or wastewater treatment plants drop below 4,000
LUE's. At such time Franklin may obtain commitments for up to 1,500
LUE's of capacity in the treatment plants by prepaying water and
wastewater LUE fees or by obtaining final plat approval for the tract or
portions thereof.
2.
NUMBER OF
LUE's
Article II
Covenants and Agreements of the City
2.01. Water Improvements. The water improvements needed to
serve the Franklin Tract are described in Revised Exhibit "A" and
Revised Exhibit "B." Franklin agrees to deposit with the City, upon
execution of this Revised Agreement, the sum of $140,000 as its share of
constructing the water lines from H to G, G to E, and E to K (Pond #6.)
City agrees upon execution of the Revised Agreement and receipt of the
aforesaid sum from Franklin, to approve a change order to the contract
for construction of the golf course, such change order to provide for
the construction of the aforesaid water improvements. The City agrees to
diligently pursue the completion of said improvements.
'
2.02. Wastewater Improvements Feasibility Study. As a result of
the construction of the aforesaid waterline improvements, the City will
not be required to develop a second water well for golf course
irrigation purposes. In consideration of the foregoing, the City agrees
to spend up to $33,000.00 to perform a feasibility study for the
wastewater improvements described in Revised Exhibit "A" and Revised
Exhibit "B" and to acquire the easements for said improvements. The
feasibility study will include (1) a routing plan for a twenty -five foot
(25') wide easement for the gravity wastewater main, as well as a
reclaimed water line for golf course irrigation; (2) an ownership map of
the proposed route; (3) a preliminary line size plan; and (4)
preliminary easement acquisition and construction costs. Surveying the
easement and providing field note descriptions will be considered as
easement acquisition costs and not part of the feasibility study. It is
agreed between Franklin and City that the cost of performing the
feasibility study is $9,500.00. The City agrees to pay the easement
acquisition cost up to $23,500.00, with Franklin paying the remaining
costs. City and Franklin agree that upon completion of the feasibility
study they will in good faith promptly proceed to acquire the needed
easements. Franklin will be responsible for the construction costs of
the gravity main and the City will be responsible for the construction
costs of the reclaimed water line.
2.03. Acceptance For Maintenance. Upon completion of water
improvements and wastewater improvements in accordance with the approved
plans and specifications therefor and in accordance with the ordinances
and regulations of the City, the City agrees to accept same for
maintenance. Upon completion of the required subdivision improvements,
including but not limited to streets, drainage, etc., in accordance with
the approved plans and specifications therefor and in accordance with
the ordinances and regulations of the City, City agrees to accept same
for maintenance.
2.04. Oversize Reimbursement. The City acknowledges that the
wastewater improvements and water improvements described in this
Revised Agreement may include certain oversized components which are to
be constructed and /or paid for by Franklin at the request of the City.
Accordingly, Franklin will be reimbursed for said oversize expense as
3 .
provided by Chapter 8, Section 6.J.(4), Code of Ordinances, City of
Round Rock.
Article III
Agreements and Covenants of Franklin
3.01. Utility Easements on Franklin Tract. Prior to the
commencement of construction on the Franklin Tract of the water or
wastewater improvements the subject of this Agreement, Franklin shall
execute and deliver to the City all necessary utility easements, at no
cost to the City.
3.02. Water and Wastewater Improvements. The water improvements
from E to D , and the wastewater improvements from D to J, as described
in Revised Exhibit "A" and Revised Exhibit "B ", will be constructed by
Franklin as its sole cost and expense except for oversize as required by
the City and paid for out of the City's oversize fund.
As a condition to the approval of any final plat of any portion of
the Franklin Tract, Franklin agrees to provide for the construction of
the water improvements from E to D, as described in Revised Exhibit "A"
and Revised Exhibit "B."
Article IV
Conditions
4.01. Citv's Conditions. The City's obligations to provide
water and wastewater service to the Franklin Tract; reimburse Franklin
pursuant to the oversize policy; and perform its other obligations
under this Revised Agreement shall be conditioned and contingent upon:
a. Utility Easements. All necessary utility easements have been
fully executed, acknowledged, and recorded in the real
property records of Williamson County, Texas.
b. Other Agreements. Each of the covenants and agreements of
Franklin set forth herein shall have been satisfied or
evidence satisfactory to City shall have been provided to City
confirming that each of the covenants and agreements of
Franklin not previously satisfied will be satisfied.
4.02. Franklin's Conditions. Franklin's obligation to construct
the water and wastewater improvements and perform the other obligations
of Franklin as provided in this Agreement shall be conditioned and
contingent upon:
a. Other Agreements. Each of the covenants and agreements of the
City set forth herein shall have been satisfied or evidence
satisfactory to Franklin shall have been provided to Franklin
confirming that each of the covenants and agreements of the
City not previously satisfied will be satisfied.
4.
Article V
Costs
The City will pay the following additional costs: the City's
attorney's fees and the cost of any surveys necessary to effectuate this
Revised Agreement. Franklin will pay Franklin's attorney's fees and the
cost of recording the utility easements necessary to effectuate this
Revised Agreement.
Article VI
Default: Remedy
In the event that either party fails to perform its obligations
hereunder (except as may be excused (i) by the other party's default or
failure or (ii) by the express terms of this Revised Agreement), the
party claiming default will make written demand for performance on the
defaulting party (herein so called). In the event the defaulting party
fails to comply with such written demand within ten (10) days after
notice thereof, the other party will have the option to waive such
default or, due to the unique character of the subject matter of this
Revised Agreement, seek and obtain specific performance of the terms and
provisions of this Revised Agreement; it being expressly acknowledged
and agreed by the parties hereto that damages for breach or default of
the terms of this Revised Agreement are inadequate and each party hereto
accordingly unconditionally waives any defense that damages or other
remedies, other than specific performance, will adequately or
appropriately compensate any other party hereto for a breach or default
hereunder.
If to the City:
With a copy to:
If to Franklin:
Article VII
Miscellaneous
7.01. Time. Time is of the essence of this Agreement.
7.02. Notice. - All notices, requests, demands, and other
communications under this Revised Agreement, to be effective, shall be
in writing and sent by regular or certified mail, return receipt
requested, with the U.S. Postal Service, addressed as follows:
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Attention: Robert L. Bennett
Stephan L. Sheets & Associates, P.C.
309 East Main Street
Round Rock, Texas 78664
Attention: Stephan L. Sheets, Esq.
Franklin Plaza
111 Congress
Austin, Texas 78701
Attention: Kenneth L. Anderson
5.
•
With copies to:
Franklin Federal Bancorp
111 Congress Avenue
Austin, Texas 78701
Attention: Tim Irvine
Trotter & Herndon, P.C.
3101 Bee Caves Road, Suite 302
Austin, Texas 78746
Attention: Mark A. Herndon
or at such other address, and to the attention of such other person, as
either party shall give notice as herein provided. All such notices,
requests, demands, and other communications shall be deemed to have been
given for all purposes hereof on the first calendar day after the date
of the mailing thereof if sent by certified mail, return receipt
requested, with postage prepaid, or on the third calendar day after the
date of the mailing thereof if sent by regular mail, with postage
prepaid; provided, that each party shall also have the right to utilize
courier service, telecopy or personal delivery, in which case the
notice, request, demand or other communication will be deemed given on
the date of actual delivery to the specified address.
7.03. Brokerage. Each of the City and Franklin represents to the
other party that it has not engaged, and covenants that it will not
engage, any broker or finder in connection with this Revised Agreement
or the transactions contemplated herein in a manner so as to give rise
to any valid claim for any brokerage or finders' fee or similar
compensation. Each party further represents to the other party that it
has not authorized, and will not authorize, any person to act in a
manner so as to give rise to any valid claim for any brokerage or
finders' fees or similar compensation, and, if any party or their
affiliates has caused any such fee to be payable, then such party shall
bear any such fee.
7.04. Entire Agreement and Modifications. This Revised Agreement
embodies and constitutes the entire understanding among the parties with
respect to the transactions contemplated herein, and all prior or
contemporaneous agreements, understandings, representations, and
statements (whether oral or written) are merged into this Revised
Agreement. Neither this Revised Agreement nor any provision hereof may
be waived, modified, amended,` discharged, or terminated except by an
instrument in writing signed by the party against whom the enforcement
of such waiver, modification, amendment, discharge or termination is
sought, and then only to the extent set forth in such instrument.
7.05. Applicable Law. This Revised Agreement shall be governed by
and construed in accordance with the laws of the State of Texas, and all
obligations of the parties created hereunder are performable in
Williamson County, Texas.
7.06. Captions. The captions in this Revised Agreement are
inserted for convenience of reference only and in no way define,
6.
describe or limit the scope or intent of this Agreement or any of the
provisions hereof.
7.07. Assignment. This Revised Agreement (including all terms,
provisions and rights) may not be assigned by the City without the prior
written consent of Franklin, although Franklin shall be entitled to
assign its interest in this Revised Agreement to any entity acquiring
all or substantially all of Franklin's interest in the Franklin Tract.
7.08. Exhibits. All exhibits to this Revised Agreement are hereby
fully incorporated herein by reference for all purposes as though fully
set forth herein.
7.09. Severability. If any provision of this Revised Agreement is
held to be illegal, invalid, or unenforceable under present or future
laws, such provision shall be fully severable and shall not invalidate
this Revised Agreement, and the remaining provisions of this Revised
Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provisions or by its
severance from this Revised Agreement.
7.10. Gender of Words. Words of any gender shall include the other
gender where appropriate.
7.11. Binding Effect. This Revised Agreement will inure to the
benefit of and bind the respective heirs, personal representatives,
successors and assigns of the parties hereto. Nothing herein shall be
construed to create any third party beneficiaries' rights or any rights
in any other persons not a party to this Revised Agreement.
7.12. Legal Construction. The terms and provisions of this Revised
Agreement represent the results of negotiations among the parties, each
of which has been represented by counsel of its own selection, and none
of which has acted under duress or compulsion, whether legal, economic,
or otherwise. Consequently, the terms and provisions of this Revised
Agreement shall be interpreted and construed in accordance with their
usual and customary meanings, and the parties hereby expressly waive and
disclaim in connection with the interpretation and construction of this
Revised Agreement, any rule of law or procedure requiring otherwise,
including, without limitation, any rule of law to the effect that
ambiguous or conflicting terms or provisions contained in this Revised
Agreement shall be interpreted or construed against the party whose
attorney prepared this Revised Agreement or any earlier draft of this
Revised Agreement.
7.13. Attorney's Fees. In the event either party should default
under any of the terms or provisions of this Revised Agreement and, as
a consequence, the other party should employ attorneys or incur other
expenses for the collection of amounts payable hereunder for the
enforcement of performance or observance of any obligation, covenant or
agreement on the part of the other party contained in this Revised
Agreement and litigation shall ensue, then the party prevailing in said
litigation shall be entitled to recover reasonable attorney's fees,
7 .
court costs and other reasonable expenses associated with any such
litigation.
7.14. Survival. Each of the representations, warranties, terms
and provisions of this Revised Agreement shall survive the execution of
this Revised Agreement and the execution and delivery of the other
documents contemplated to be executed and delivered in connection
herewith, and shall continue in full force and effect.
7.15. Status of Parties' Relationship. Nothing in this Revised
Agreement shall be construed to make any party the partner or joint
venturer of or with respect to any other party.
7.16. Counterpart Execution. This Revised Agreement may be
executed in multiple original counterparts, each of which shall be
deemed an original but all of which together shall constitute but one
and the same instrument.
7.17. Authority. Each person executing this Revised Agreement
warrants and represents that he has the power and authority to enter
into this Revised Agreement in the name, title, and capacity herein
stated and on behalf of the entity represented or purported to be
represented by such person.
7.18. Dedication and Development Agreement. The City and Franklin
acknowledge and agree as follows:
a. This Revised Agreement supercedes the 1988 Agreement, which
shall be of no force and effect from and after the effective
date hereof.
b. All references to the 1988 Agreement contained in that certain
Dedication and Development Agreement, dated as of September
28, 1989 ( "Dedication Agreement "), and each and every document
executed pursuant thereto or in connection therewith shall be
deemed references to this Revised Agreement, effective as of
the date of each such document.
c. All notice provisions contained in the Dedication Agreement
and in each and every document executed pursuant thereto or in
connection therewith are amended by substituting the language
contained in Section 7.02 therefor.
d. Except as expressly modified in this Section 7.18, the
Dedication Agreement and each and every document executed in
connection therewith or pursuant thereto is hereby ratified
and confirmed and shall continue in full force and effect in
accordance with its terms.
8.
IN WITNESS WHEREOF, this Revised Agreement has been executed by the
parties on the dates hereafter indicated, to be effective, however, as
set forth above.
ATTEST:
CITY OF ROUND ROCK, TEXAS
By:
Date:
FRANKLI
a Tex
Date:
9.
Mike Robinson, Mayor
34 /990
Kenneth L. de 'son, Vice President
% /L O / /790
FROM J. DRUID TROTTER LRW OFFICE •
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EXHIBIT
Revised
Exhibit "A"
0•
2. Line Extension - CR 122
G to E, 16 ", 4056 ft.
3. Line Extension
E to K (Pond #6), 12 ",
2348 ft.
SUBTOTAL
Phase II Water Improvements
C54W &WSERCOST
SUBTOTAL
Wastewater Improvements
2. Reclaimed water
irrigation line
SUBTOTAL
TOTAL
* = estimate
Water And Wastewater Service Costs
Cost to
Phase I Water Improvements Franklin
1. Line Extension - Gattis
School Rd., H to G, 16 ",
1161 ft. $ 23,828.22 $ 11,842.00
83,244.13
32,927.65
1. Line Extension to
Regional Treatment Plant,
18" $216,000.00*
$140,000.00 $ 77,162.80
1. Line Extension - CR 122
E to D, 16" $115,200.00* $ 38.400.00* $153,600.00*
$115,200.00* $ 38,400.00* $153,600.00*
-o-
$216,000.00* $298,800.00*
$471,200.00* $414,362.80*
1
Cost
to
City
41,371.20
23,949.60
$ 43,200.00*
255,600.00*
Total
$ 35,670.22
124,615.33
56,877.25
$217,162.80
$259,200.00*
255.600.00*
$514,800.00*
$885,562.80*
DATE: April 23, 1990
SUBJECT: City Council Meeting, April 26, 1990
ITEM: 9G. Consider a resolution authorizing the Mayor to execute
a revised water and wastewater service agreement with
Franklin Capital Corporation for the Franklin Tract.
STAFF RESOURCE PERSON:
STAFF RECOMMENDATION:
Jim Nuse
To authorize the Mayor to enter into agreement.
The purpose of this agreement is to revise the existing water and waste-
water agreement. The water aspects include the construction of 16 inch and
12 inch water lines. Franklin agrees to pay $140,000. and the balance will be
paid for in accordance with the oversize policy. Manville Water Supply Corp.
is also to contribute. This item will be Change Ordered into the Golf Course
Contract.
Please refer to Section 2.01, 2.02, 3.02, Exhibit A and Exhibit B for
the significant changes in this contract.
Please refer to item 13 A. Any excess funds will be refunded to the
oversize fund.
STEPHAN L. SHEETS
KEVIN HENDERSON
CHARLES D. CROSSFIELD
STEVEN C. COPENHAVER
Mr. Kenneth Anderson
Vice Presi• -nt
Franklin ederal Bancorp
P.O. B - 1723
Austi•, Texas 78767
Dear Kenny:
SLS /gj
Enclosures
cc: Bob Bennett
Mark A. Herndon
Jim Mills
STEPHAN L. SHEETS & ASSOCIATES, P.C.
ATTORNEYS AT LAW
309 E. MAIN STREET
ROUND ROCK. TEXAS 78664
April 30, 1990
Re: "Franklin 582 Water and Wastewater Service
Agreement (Revised)"
Enclosed please fine one (1) original executed counterpart of the
above described Agreement.
As always, it was a pleasure dealing with you, Mark and both
Jims. Let me know if you have any questions.
Stephan L. Sheets
TELEPHONE
(512) 255-5877
FAX
(512) 255.8986