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R-86-914 - 9/11/1986RESOLUTION NO. 914R WHEREAS, MMJ DEVELOPMENT JOINT VENTURE, a Texas joint venture (hereinafter referred to as "MMJ"), CONTINENTAL DIVERSIFIED INVESTMENTS, INC., a Texas corporation (hereinafter referred to as "CONTINENTAL"), and FRANKLIN SAVINGS ASSOCIATION, a Texas Savings and Loan Association (hereinafter referred to as "FRANKLIN") , are developers of land which will benefit from the construction of regional stormwater detention facilities and WHEREAS, in order to utilize those regional detention facilitates the water must be conveyed from the land of the developers and WHEREAS, a Channel is the best alternative for the conveyance of these water and WHEREAS, it is beneficial to the developer and the City of Round Rock to build those facilities; 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 a contract with MMJ, Continental and Franklin to provide for the construction of said in documents in accordance with the terms and conditions of that certain contract, a copy of which is attached hereto and incorporated herein for all purposes. RESOLVED this 11th day of September, 1986. MIKE ROBINSON, Mayor City of Round Rock, Texas ATTEST: et. NNE LAND, City Secretary DLW/jmb Disk: Resolutions Titled: MMJ Rev. 9/9/86 --7 AGREEMENT REGARDING THE CONSTRUCTION OF CHANNEL IMPROVEMENTS IN CONNECTION WITH A PORTION OF THE MAIN TRIBUTARY OF S.C.S. No. 14 THE STATE OF TEXAS COUNTY OF WILLIAMSON § § THAT THIS AGREEMENT is made and entered into as of this the day of , 1986, by and between THE CITY OF ROUND ROCK, TEXAS (hereinafter referred to as "City"), MMJ DEVELOPMENT JOINT VENTURE, a Texas joint venture (hereinafter referred to as "MMJ"), CONTINENTAL DIVERSIFIED INVESTMENTS, INC., a Texas corporation (hereinafter referred to as "CONTINENTAL"), and FRANKLIN SAVINGS ASSOCIATION, a Texas Savings and Loan Association (hereinafter referred to as "FRANKLIN"), for the purposes and consideration hereinafter described. MMJ, Continental, and Franklin are sometimes collectively referred to herein as "Participants". WHEREAS, total of 582 to northeast Exhibit "A", W ITNESSET H: Participants own approximately 224.55 acres of land out of a .40 acres of land contained in an area generally in and adjacent Round Rock, said area being designated as the "Study Area" in attached hereto and incorporated herein for all purposes; and, WHEREAS, regional detention facilities are being constructed to serve such Study Area, but such Study Area does not have a drainage channel facility to convey stormwater flows to such regional detention facilities; and, WHEREAS, Haynie, Kallman & Gray, Inc. (hereinafter referred to as "Project Engineer") has determined that in order for the Study Area to properly utilize such regional detention facilities, certain channel improvements to the main tributary of the S.C.S. Reservoir No. 14 must be constructed; and, WHEREAS, Project Engineer has prepared plans entitled "Glen Channel Drainage Improvements", dated September , 1986 (hereinafter referred to as "Plans"), for the construction of certain improvements in connection with a portion of the main tributary of S.C.S. No. 14, (hereinafter referred to as "Improvements"); and, WHEREAS, Participants and the City are desirous of having such channel improvements constructed from Chandler Road to the S.C.S. Reservoir No. 14 as soon as possible to facilitate conveyance of stormwater flows from the Study Area to the regional detention facilities; and, WHEREAS, Participants have agreed to construct the Improvements at their cost and expense, provided the Participants agree to contribute to the cost thereof in the amounts, respectively, as set forth on Exhibit "B", attached hereto and made a part hereof for all purposes, opposite their names under the column marked "ESTIMATED PARTICIPANT UP FRONT COSTS", and, provided further that the total cost for the Improvements does not exceed $343,000.00, as detailed in Exhibit "C", attached hereto and made a part hereof for all purposes; and, WHEREAS, the City does not have current funds available for the construction of such Improvements, NOW, THEREFORE, for a full valuable and consideration, each to the other in hand paid, the receipt and sufficiency is hereby acknowledged, it is hereby agreed as follows: I. DESIGNATION OF MANAGER 1.01. Duties and Powers of Manager. City shall serve as Manager (hereinafter referred to as "Manager") for the construction of the Improvements. 1657D/1.Rev.07 1.02. Manager, upon the execution of this Agreement by all of the Participants, shall in its name, but on behalf of itself and the Participants: (i) solicit bids for the construction of the Improvements in accordance with City policy; (ii) approve or reject any or all bids and enter into a contract (which shall include a payment and performance bond for the full amount of the contract) with the successful bidder or bidders, if any, for the construction of the Improvements; and (iii) do such other acts and deeds as may be necessary or appropriate, in the sole discretion of Manager, in order to construct the Improvements in accordance with the Plans, and, not withstanding anything herein to the contrary, the Manager shall be authorized to negotiate for the construction of such Improvements, so long as the total cost thereof does not exceed $343,000.00. 1.03. Manager recognizes, understands, accepts and agrees that as Manager it shall not only have and exercise rights and responsibilities on behalf of the Participants, as set forth in this Agreement, but more importantly, it shall have and exercise such rights and responsibilities to the best of its ability and in the mutual best interests of the Participants, including Manager. II. CONTRACTOR'S WARRANTY 2.01 Bond and Guarantee. Manager and Participants agree that any construction contract entered into for the construction of the Improvements shall include the following guarantee by the contractor to the Manager: The contractor warrants the materials and workmanship and that the work is in conformance with the plans and specifications included in this contract for a period of Two (2) years from the date of acceptance of the project. Said warranty binds the contractor to correct any work that does not conform with such plans and specifications or any defects in workmanship or materials furnished under this contract which may be discovered within the said two (2) year period. The contractor shall, at his own expense, correct such defect within thirty (30) days after receiving written notice of such defect from the Manager or Engineer by repairing same to the conditions called for in the contract documents and plans and specifications. Should the contractor fail or refuse to repair such defect within the said thirty (30) day period or to provide acceptable assurances that such repair work will be completed within a reasonable time thereafter, the Manager may repair, or cause to be repaired, any such defect at the contractor's expense. and that such guarantee after acceptance of the Improvements by the City shall be fully assigned to the City for its benefit and the City shall look solely to the contractor for remedy of any defect. III. PAYMENTS BY PARTICIPANTS 3.01 Letter of Credit. Within ten (10) days after the execution of this Agreement, each of the Participants shall deposit an irrevocable Letter of Credit, issued by a financial institution whose principal office is within the State of Texas, in a form substantially the same as the form shown on Exhibit "D", attached hereto and made a part hereof for all purposes. The amount of such Letter of Credit for each Participant shall be the amount set forth on Exhibit "B", opposite each Participant's name under the column marked "ESTIMATED PARTICIPANT UP FRONT COST". Such amount has been calculated as follows: ($343,000.00) Participant's No. of ( 224.55 ) x Acres in Study Area 3.02. Total Cost. For the purposes of this Agreement, the term "total cost" shall mean all costs and expenses incurred by Manager, including, but not limited to, engineering, surveying, legal and accounting costs, and the 1657D/2.Rev.07 cost and expenses of construction of the Improvements. In the event the total cost of the Improvements is less than $343,000.00, each Participant shall be entitled to a pro—rata reduction in costs. In the event the total cost of the Improvements exceeds $343,000.00, any Participant may declare this Agreement to be null and void. If this Agreement is so declared to be null and void, the City and the Participants will work together toward a revised contract to achieve a drainage channel facility for the Study Area satisfactory to all parties. 3.03. The Participants acknowledge that MMJ has already paid $ in costs associated with the Improvements, as detailed in Exhibit "E", attached hereto and made a part hereof for all purposes, and that such costs shall be considered part of the total cost of the Improvements and shall be reimbursed to MMJ. 3.04. Payment of Costs. The Manager shall provide Participants with statements and accountings of all sums of money to be paid to the contractor pursuant to the Construction Contract. The Participants shall pay to the Manager the amount specified in the statements within ten (10) calendar days of receipt. IV. DEFAULT 4.01. Default. Except as provided in Paragraph 4.04. below, each of the following shall constitute a default by a Participant hereunder: (a) The failure of a Participant to pay any sum required to be paid by such Participant under the terms and provisions and during the time periods specified in the Agreement; or (b) The failure of a Participant to perform any of its other covenants or obligations hereunder. 4.02. In the event that a Participant fails to pay an invoice within ten (10) calendar days of its receipt of the statement sent by Manager, such statements shall be past due. The Manager may, then, at its option, seek any specific remedies provided in this Agreement for such default, enforce specific performance of this Agreement against such Participant, and/or pursue any other remedy available at law or in equity. 4.03. Notwithstanding anything herein to the contrary, no Participant shall be deemed to be in default hereunder until the passage of ten (10) calendar days after receipt by such Participant of notice of default from the Manager. Said default notice shall be sent in accordance with Paragraph 6.03. Upon the passage of such period of time, without cure of the default, such Participant shall be deemed to have defaulted for purposes of this Agreement. The defaulting Participant shall then be deemed to have relinquished any funds paid without limiting any other remedies available to the other Participant. 4.04. In the event the Manager employs an attorney or attorneys to pursue any of the remedies available under this Agreement against any one or all of the Participants who are in default hereunder, the defaulting Participant(s) shall pay all costs and expenses, including but not limited to reasonable attorney's fees, incurred by the Manager in connection therewith. V. OBLIGATIONS OF THE CITY 5.01. The City hereby agrees to the following provisions: (a) The City will provide use of any and all City rights of way and easements that might be reasonably needed by Manager to construct the Improvements and perform its obligations as herein provided. If necessary in order to provide further required easements, the City shall initiate eminent domain proceedings upon a declaration of a public necessity by the City Council. All costs of acquiring such easements shall be included as part of the cost of the Improvements. (b) The City shall approve the Plans prepared by the Project Engineer. 1657D/3.Rev.07 ("t\Lsy, - (c) The City agrees that all funds received by the City, in its role as the Manager, shall be held by the City in a separate account and shall not be spent for any purpose other than for costs directly associated with the design and construction of the Improvements. (d) It is contemplated that in the future other landowners and/or developers of other land within the Study Area (Non -participants) will be required to contribute to the cost of the Improvements in order to satisfy the City's drainage/detention requirements in connection with platting and/or development of their land. Such other landowners and/or developers will be charged a subsequent user fee by the City which shall be determined by the following formula: Subsequent User Fee Non -participant's acreage in Study Area X Project Costs I 2 582.40 X 1.2 10% interest compounded annually. The foregoing subsequent user fee shall be charged to such landowners and/or developers at the time their subdivision plat is filed with the City or if no subdivision plat is necessary, at the time application is made for water or wastewater service, whichever first occurs. These subsequent charges shall be used solely to reimburse the Participants their contributions as indicated on the appropriate line of Column "E" of Exhibit "B". In addition, such excess amounts contributed by the Participants shall accrue ten percent (10%) interest compounded annually. Such reimbursements shall be made on a semi-annual basis on or about January 10 and July 10 of each calendar year on a pro rata basis. After the Participants have been reimbursed, the City may use the subsequent user fees for any lawful purpose. (e) The City agrees that when a Participant has signed this Agreement and if the Participant is also a Participant in the S.C.S. Reservoir #14 Agreement and has deposited its Letters of Credit for each Agreement, such Participant shall have fulfilled all of the City's requirements as to drainage and detention facilities with respect to its land in the Study Area. VI. ADDITIONAL OBLIGATIONS OF PARTICIPANTS 6.01. The Participants hereby agree to the following additional provisions: (a) This contract shall not be construed to exempt payment of any development, service, or permit fees ordinances of the City. (b) The Participants hereby bind themselves, Participants from the otherwise required by their successors and assigns, to grant, dedicate and convey to the City, without charge and subject to the terms of this Paragraph, any and all non-exclusive permanent and temporary easements, along with the right of ingress, egress, and regress on their respective properties necessary for the construction, operation and maintenance of the Improvements. Any Participant required to grant and convey an easement hereunder shall obtain the signatures of each and every lienholder on their Property, if any, on the easement instrument; provided, however, in the event that any lien agreement encumbering a Participant's property explicitly states that the lienholder's approval or execution of utility easements is not required for the granting of such easements on the property, such lienholder shall not be required to sign the easement document required by this paragraph. In the event that any Participant fails to grant, convey, and dedicate any easement as required by this paragraph (including obtaining the signature of a lienholder), such Participant shall be deemed in default of this Agreement and shall be liable to the other Participants for all costs of acquiring such easement. Said recoverable costs shall include, without limitation, attorney's fees, engineering and surveying fees, court costs and appraiser fees. Each Participant shall cooperate, i L c77.% //. ) provide information, execute documents, provide access to its property and do or refrain from doing any act which the Manager, or the Project Engineer may reasonably request to effect the accomplishment of the matters described herein. (c) Continental and Franklin hereby agree to bind themselves, their successors and assigns to construct upstream extensions of the Improvements across their respective acreages within the service area (as depicted in Exhibit A), as a part of their respective subdivision improvements for Vista Heights, at no cost to the City or MMJ. These channel extensions will connect the Improvements to the existing channel constructed by MMJ as a part of the subdivision improvements within Oakmont Crossing Section One. Continental and Franklin further agree to construct these channel extensions concurrently with the Improvements -4:4— (d) Each Participant hereby agrees to indemnify and hold harmless the Manager, its heirs, successors and assigns, from and against any and all liability, loss, cost, damage, attorney's fee, and expense of whatever kind of nature in connection with any claim or cause of action which any such Particpant, its heirs, successors or assigns, or any agent, employee, subcontractor, materialman or supplier of any such Participant may bring against the manager for the failure of the City: (1) to approve the plans and specifications for the Improvements; (2) to approve construction dates; (3) to accept the Improvements; and (4) any other act or omission of the City. VII. FORCE MAJEURE 7.01. Force Majeure. The term "Force Majeure", as employed herein, shall mean and refer to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; orders of any kind of the Government of the United States, the State of Texas, or any civil or military authority; insurrections; riots; epidemic; landslides; lightning; earthquakes; fires; hurricanes; storms; floods; washouts; droughts; arrest; restraint of government and people; civil disturbances; explosions; breakage or accidents to machinery, pipelines, or canals; or other causes not reasonably within the control of the party claiming such inability. 7.02. If, by reason of Force Majeure, any party hereto shall be rendered wholly or partially unable to carry out its obligations under this Contract, such party shall give written notice of the full particulars of such Force Majeure to the other parties to this Agreement within ten (10) days after the occurrence thereof. The obligations of the party giving such notice, to the extent affected by such Force Majeure, shall be suspended during the continuance of the inability claimed, except as hereinafter provided, but for no longer period, and any such party shall endeavor to remove or overcome such inability with all reasonable dispatch. 7.03. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the party having the difficulty, and that the above requirement that any Force Majeure shall be remedied with all reasonable dispatch shall not require that the settlement be unfavorable in the judgment of the party having the difficulty. VIII. MISCELLANEOUS PROVISIONS 8.01. Entire Agreement. This Agreement contains the complete and entire agreement between the parties respecting the matters addressed herein, and supersedes all prior negotiations, agreements, representations and understandings, if any, between the parties respecting such matters. This Agreement may not be modified, discharged or changed in any respect whatsoever 1657D/5.Rev.07 except by a further agreement, in writing, duly executed by the parties hereto. However, any consent, waiver, approval or authorization shall be effective if signed by the party granting or making such consent, waiver, approval or authorization. 8.02. Parties Bound. This Agreement shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and assigns of the parties hereto. 8.03. Notices. Except as may be otherwise specifically provided in this Agreement, all notices required or permitted hereunder shall be in writing and will be deemed to be delivered and received when deposited in the United States Mail (certified or registered mail, return receipt requested), delivered to Federal Express for courier delivery, or delivered to a telegraph company for delivery as a telegram, delivery charges prepaid, properly addressed to the parties at their respective addresses set forth below or at such other addresses as may have theretofor been specified by written notice, delivered in accordance herewith. 8.04. Other Instruments. The parties hereto covenant and agree that they will, when reasonable, execute other and further instruments and documents as are or may become necessary or convenient to effectuate and carry out the purposes of this Agreement. 8.05. Invalid Provision. Any clause, sentence, provision, Paragraph or article of this Agreement held by a Court of competent jurisdiction to be invalid, illegal or ineffective shall not impair, invalidate or nullify the remainder of this Agreement, but the effect thereof shall be confined to the clause, sentence, provision, Paragraph or article so held to be invalid, illegal or ineffective. 8.06. Applicable Law. This Agreement shall be construed under the laws of the State of Texas, and all obligations of the parties hereunder are performable in Travis County, Texas. 8.07. Time is of the Essence. Time shall be of the essence of this Agreement. 8.08. Third Party Beneficiaries. Except as otherwise expressly provided herein, nothing in this Agreement, express or implied, is intended to confer upon any person, other than the parties hereto and their heirs, personal representatives, successors and assigns, any benefits, rights or remedies under or by reason of this Agreement. 8.09. Saturday, Sunday, or Legal Holiday. If any date set forth in this Agreement for the performance of any obligation or for the delivery of any instrument or notice should be on a Saturday, Sunday or legal holiday, the compliance with such obligation or delivery shall be acceptable if performed on the next business day following such Saturday, Sunday, or legal holiday. For purposes of this subparagraph, "legal holiday" shall mean any state or federal holiday for which financial institutions or post offices are generally closed in Travis County, Texas, for observance thereof. 8.10. Exhibits. All recitals and all schedules and exhibits referred to in this Agreement are incorporated herein by reference and shall be deemed part of this Agreement for all purposes, as if set forth at length herein. 8.11. No Joint Venture, Partnership, Agency, Etc. Except to the extent that the Manager is appointed as the agent of the Participants, this Agreement shall not be construed as in any way establishing a partnership or joint venture, express or implied agency, or employer-employee relationship between the parties hereto. 8.12. No Waiver. No consent or waiver, express or implied, by the Manager to or of any default of any covenant or provisions hereof by any Participant hereunder shall be construed as a consent or waiver to or of any other default of the same or any other covenant or provision hereof. Any consent or waiver by Manager of its own default hereunder shall not be binding on the other Participants. 1657D/6.Rev.07 8.13. Remedies. All of the rights and remedies of any party under this Agreement are intended to be distinct, separate, and cumulative, and no such right or remedy herein mentioned is intended to be an exclusion of or a waiver of any of the others unless expressly so provided. 8.14. Counterparts. This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original and all of which shall together constitute one and the same instrument. The terms of this Agreement shall become binding upon each party from and after the time that it executes a copy hereof. In like manner, from and after the time that any party executes a consent or other document authorized or required by the terms of this Agreement, such consent or other document shall be binding upon such parties. IN WITNESS WHEREOF, this instrument is executed as of the first day written above. CITY: CITY OF ROUND ROCK ATTEST: City Secretary By: Name: Jack A. Harzke Title: City Manager Address: 214 East Main Street Round Rock, Texas 78664 PARTICIPANTS: MMJ DEVELOPMENT JOINT VENTURE 1657D/7.Rev.07 By: Name: Bill Milburn Title: Managing Venturer Address: 11911 Burnet Road Austin, Texas 78758 CONTINENTAL DIVERSIFIED INVESTMENTS, INC. By: Name: Title: Address: Zack E. Williams FRANKLIN SAVINGS ASSOCIATION By: Name: Title: John L. German Executive Vice President Address: 712 Congress Avenue Austin, Texas 78701 Wl /2 i o r • IL 71, // �C U 0 CC /6° Lr 0 In N,. J 0 z w U.1 J 0 2 CC / LLI Zv� Q 13' cr---- IMPROVEMENT COST DISTRIBUTION 4-J • t1) -. U A $-i a 4-I cU 4 0 U H O CT' VI H a a cc) $.4 SL .a a u 4J W H wv ow H $4 0 03 44 a > a G ,-1 maw ,-1 rl o u u H ,� K 4-+44 4J 14 c0 a U o a F W Estimated II 10 H N O II II 1/40 03 a a N. in p O\ In H N. n M rn N. o u 10 rn H II - —N II 03 rn M o II N. oII H O^ H O II - O 00 M II O 03 Ln H M 0 II - u N • cn . • c0 a ua a) a a U 'n u O cn u 1a a ,-1 Pa Pa a.+ c0 0 a Participant O v --I ON O N n O O 00 ON ON n -7 H n -4- H H ON N O ,--1 O N �7 Cr) 10 Cr) H 00 in 00 NI 1D Ln O H b a 0 co 14-i H u ai 1.4 O ,-1 a H co u O 1•+ 00 O W O A 0 H co a s ,--1a c0 0 a 03 p A 0 0 0 H 0 +4-J ti U �$_, H cb a 00 ni a u c0 cA u ni ni Q.) 4-1 0 0 0 c0 u 0 0 a.+ a a 1657D/8.Rev.07 Consulting Engineers MOUND ROCK GLEN PRELIMINARY COST ESTIMATES PHASE ONE (EXCLUDING MEADOWLAKE) 1. Total Excavation 32,790 C.Y. @ 1.25 2. Total Embankment (Onsite) 4,667 @ 0.85 3. Total Embankment (Offsite) 28,123 C.Y. @ 0.85 4. 7.5 Acres Restoration (Hydromulch) @ $425/Acre 5. 10.8 Acres Clearing & Grubbing @ $400/Acre _ $ 40,987.50 $ 3,966.95 $ 23,904.55 $ 3,187.50 $ 4,320.00 6. Relocation of Existing Utilities and/or Services Per Lump Sum $ 7,500.00 SUBTOTAL $ 83,866.50 8. 10% Contingencies $ 8,386.65 9. 10% Engineering Fee $ 8,386.65 10. 1.5% Inspection Fee $ 1,257.00 TOTAL $101,896.80 12303 Technology Blvd., Suite j Austin, Texas 78727 (512) 250-8611 Civil Engineering Consultants Municipal Engineering Land Nanning Surveying EXHIBIT "C" Page 1 of 3 ��'' Inc. Engineers BOUND ROCK GLEN PRELIMINARY COST ESTIMATES PHASE TWO 1. Total Excavation 53,800 C.Y. @ 1.25 = $ 67,250.00 2. Total Embankment (Offsite) 53,800 C.Y. @ 0.85 $ 45,730.00 3. 6 BBL 30" CMP Low Water Crossing Complete W/Slope Paving, 2 Conc. Ribbon Curb, 20' HMAC 1 1/2" THK Road (175 LF), Backfill and Subgrade Per Lump Sum. 4. 5.6 Acres Restoration (Hydromulch) @ $425/Acre 5. 5.6 Acres Clearing & Grubbing @ $400/Acre $ 43,875.00 $ 2,380.00 $ 2,240.00 6. Relocation of Existing Utilities and/or Services Per Lump Sum _ $ 7,500.00 SUBTOTAL $168,975.00 8. 10% Contingencies $ 16,897.50 9. 10% Engineering Fee $ 16,897.50 10. 1.5% Inspection Fee $ 2,535.00 TOTAL $205,305.00 12303 Technology Blvd., Suite J Austin, Texas 78727 (512) 250-8611 Civil Engineering Consultants Municipal Engineering land Planning Surveying EXHIBIT "C" Page 2 of 3 GLEN CHANNEL DRAINAGE IMPROVEMENTS COST ESTIMATE SUMMARY Phase One Phase Two Additional Design Analyses Easement Appraisals Easement Preparation Miscellaneous 1657D/9.Rev.07 Total Total TOTAL COST EXHIBIT "C" Page 3 of 3 $101,896.80 205,305.00 4,000.00 10,000.00 9,000.00 12,798.20 $343,000.00 EXHIBIT "D" Page 1 of 3 IRREVOCABLE LETTER OF CREDIT TO: City of Round Rock Round Rock, Texas Gentlemen: 1 -Const. -We have established this date a commitment to lend sums to our customer, (Customer) to cover the entire cost of installing the subdivision improvements in subdivision. Said funds as estimated by the City Engineer are to be in the amount of: for approved rough grading of off-site improvements. for approved domestic and fire protection water improvements. for approved sanitary sever improvements. for concrete work, curb, gutters, and sidewalks. for paving improvements and all other subdivision improvements. TOTAL provided however that the sums stated above shall be subject to reductions as follows: 1. At such time as each construction contract in a form approved by the City is entered into for the construction of the Facilities, or any part thereof, the commitment evidenced hereby shall be reduced by the amount by which the City's estimated costs for the work to be done under such contract exceeds 110% of the contract price for the work to be done under such contract. 2. During construction, the commitment evidenced hereby shall be reduced periodically, upon receipt by the Ctiy, no more often than monthly, of certified statements from us as to the amounts paid out for work done, by the amount of such payments; provided, however, that if the contract price under any construction contract for the construction of any part of the Facilities exceeds the City's estimated costs for the work to be done under such contract then no reduction shall be permitted until such time as 110% of the remaining contract price for the work remaining to be done under -such contract is less than the City's estimated costs for the work remaining to be done under such contract. 3. Regardless of anything contained herein to the contrary, the sum allocated for water and wastewater facilities shall not be reduced to less than twenty-five percent (25X) of the contract price until such time that: (a) said facilities have been completed and approved by the City as being installed in accordance with plans and specifications, and (b) said facilities have been accepted by the City for maintenance, and (c) a one (1) year warranty bond or substitute letter of credit has been filed with, and accepted by, the City in the amount of twenty -fives: percent (25%) of actual contract price of the facilities. 4. Regardless of anything contained herein to the contrary, the sum allocated for streets and drainage facilities shall not be reduced to less than twenty-five (257) of the contract price until such time that: (a) said facilities have been completed and approved by the City as being installed in accordance with the plans and specifications, and (b) said facilities have been accepted by the City for maintenance, and (c) a one (1) year warranty bond or substitute letter of credit has been filed with and accepted by the City in the amount of twenty-five percent (25%) of the actual contract price of the facilities. EXHIBIT "D" Page 2 of 3 Irrevocable Letter of .edit -2 RR- st. 5. At such time as all of the subdivision improvements in said Subdivision have been completed and accepted by the City for maintenance and either a warranty bond or substitute letter of credit has been filed as required above, the commitment evidenced hereby shall automatically terminate, and this letter of credit shall forthwith be returned to the issuer. This commitment is made with the understanding that the City can draw any part of the total amount stated hereinabove, subject to the terms and conditions hereof, if necessary to provide for any or all of the facilities or maintenance thereof, and that any part or all of the total amount of this credit may be applied by the City to any one or more, separtately or jointly, of the Facilities, or maintance thereof. We also understand and agree that the only requirement necessary for drawing any part or all of the total amount of this credit is receipt by us, at least ten (10) days in advance of the date on which funds are requested, of a letter request from the City of Round Rock, signed by the City Manager, stating that one or more of the following conditions exists: (1) All of the following have occured: (a) Ninety (90) days have expired since the issuance of the first building permit within the subdivision, (b) the Facilities have not been completed, the failure to complete such Facilities is not due to weather, acts of God, strikes, or other reasons beyond the Customer's control, and due diligence is not then being used in efforts to complete, and (c) we have not, after receipt of written notice to us of our Customer's default, assumed in writing the obligation to complete such Facilities to the extent of the remaining balance of the letter of credit, or, having assumed such obligation, have not, within sixty days (60) thereafter, commenced efforts to complete such Facilities as provided hereinafter; or (2) The contract has been executed for the utilities on an adjoining subdivision, and it is necessary to complete certain of the Facilities within the Subdivision to provide continuity of services to the adjoining subdivision (but ony for the amounts of those Facilities within the Subdivision which are required for continuity to services to such adjoining subdivision): (3) All of the following have occured: (a) the City has given written notice, at least thirty (30) days prior to the expiration of this credit, to us and to our Customer, at our respective last -known mailing addresses, sent by certified mail, return receipt requested, that this credit is about to expire and that the Facilities have not been completed, and that the City intends to draw upon this credit. At the option of City, a substitute Letter of Credit, in this same form in an amount equal to the total sum stated hereinabove, subject to any reductions, if any, which have been made hereunder, may be substituted at least fifteen (15) days prior to the expiration date of this credit; and that the City considers such a drawing on this credit amount necessary in order to complete any part or all of the Facilities. No further substantiation of the necessity of the draw is required by this credit. In addition, if subparagraph (c) of paragraphs 3 and 4 have not been complied with, the only requirement necessary for drawing any part or all of the total amount of the twenty-five percent (25%) retainage is receipt by us, at ]east ten (10) days in advance of the date on which funds are requested, of a letter request from the City of Round Rock, signed by the City Manager, stating that the following condition exist: (1) the Facilities or portions thereof have failed within one (1) year of acceptance by the City for maintenance, due to a defect in materials or workmanship. Notwithstanding anything herein to the contrary, before requesting a draw of any part or all of this credit because of default by the customer, the City shall be required to give written notice to us of such default and sixty (60) days to assume the obligations of our Customer for completion or maintenance of the Facilities, to the extent of the remaining balance of this credit, and if we EXHIBIT,"D" Page 3 of 3 Ir -evocable Letter of Cre__.t - 3 RR -Const. assume such obligations, to the extent of the remaining balance of this credit, in writing within sixty day:, (60) after receipt of such notice, then the City shall not be allowed to request a draw on this credit, unless we fail to commence within sixty days (60) thereafter efforts to complete or maintain the Facilities. Requests for the draw of funds under this credit must be received prior to the expiration of two (2) years following the date of this credit, except that in the event subparagraph (c) of paragraphs 3 and 4 have not been complied with, then this commitment shall remain open as to the twenty-five percent (25%) retainage of each facility until one year has elapsed from the final acceptance of the facilities by the City for maintenance. This letter of credit shall be subject to and construed in accordance with the laws of the State of Texas and, particularly the Texas Business and Commerce Act. We further state that this credit is irrevocable prior to the expiration date unless all parties, including for all purposes the City of Round Rock, consent to such revocation in writing. Lender's Name (Corporate Seal, if any) Authorized Officer's Signature Attested by DATE: September 9, 1986 SUBJECT: Council Agenda, September 11, 1986 ITEM: 13D - Consider a resolution authorizing the Mayor to enter into a contract with Continental Diversified, Franklin Savings and MMG Development Joint Venture. This agreement will serve as the official document to execute a change order on the S.C.S. 14 Project to construct channel improvements through Round Rock Glen. The costs of doing these improvements will be developer supported. Easements in Round Rock Glen remain the only obsticle.