R-04-05-27-16C1 - 5/27/2004 RESOLUTION NO. R-04-05-27-16C1
WHEREAS, on September 10, 1998, the City of Round Rock entered
into a Development Agreement with NNP-Teravista, L.P. (f/k/a Newland-
Round Rock Associates, L.P. ) ( "Newland" ) regarding the terms on which
Newland would construct a wastewater interceptor ( "Original
Interceptor" ) from Chandler Road to the Chandler Creek/FM 1460
wastewater interceptor, and
WHEREAS, the City now desires to construct a wastewater
interceptor in substantially the same location proposed for the
Original Interceptor to provide wastewater service to the Round Rock
Higher Education Center ( "HEC Line" ) , and
WHEREAS, the City wishes to enter into a Memorandum of Agreement
with Newland to set forth the terms on which the City will construct
the HEC Line in lieu of construction by Newland of the Original
Interceptor, and Newland will purchase capacity in the HEC line which
will be reserved for and allocated to Newland on behalf of Williamson
County Municipal Utility District No. 11, 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 a Memorandum of Agreement with NNP-Teravista, L.P. ,
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
PPFDeSktop\::ODMA/WORLDOX/O:/WDOX/RESOLUTI/R40527C1.WPD/Sc
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended.
RESOLVED this 27th day of May, 2004 .
Mayor
ity of Round Rock, Texas
ATTEST:
i C tT
�'�
CHRISTINE R. MARTINEZ, City Secretary
2
MEMORANDUM OF AGREEMENT
On September 10, 1998, NNP-Teravista, L.P., formerly known as Newland-Round Rock
Associates, L.P. ("Newland"), and the City of Round Rock, Texas (the "City") entered into a
Development Agreement setting forth, among other provisions, the terms on which the Chandler
Road to Chandler Creek/1460 wastewater interceptor (the "Original Interceptor") would be
constructed by Newland and the City would reimburse Newland for certain oversizing costs
related to the Original Interceptor.
Due to the City's need to provide wastewater service to the Round Rock Higher
Education Center (the "HEC") by August 2005, the City intends to commence construction of a
wastewater interceptor to serve the HEC in the location shown on the attached Exhibit A. which
is substantially the same location proposed for the Original Interceptor(the"HEC Line").
In order to avoid unnecessary duplication of facilities, consistent with Section 6.02 otthe
Development Agreement, Newland and the City desire to enter.into this memorandum of
agreement (this "Agreement") to set forth the terms on which the City will design, acquire all
necessary easements for, permit and construct the HEC Line, in lieu of construction by Newland
of the Original Interceptor and Newland will purchase capacity in the HEC Line which will be
reserved for and allocated to Newland on behalf of Williamson County Municipal Utility District
No. 11 (the"District").
Therefore,the City and Newland agree as follows:
1. Capacity Payment: Newland will pay the City the sum of $1,500,000 (the
"Capacity Payment") for 1588 living unit equivalents ("LUEs") of capacity in the HEC Line,
which will be reserved for and allocated to the District, as provided in this Agreement.,
2. Payment Bond. Within 30 days of the date this Agreement is executed by both
the City and Newland,Newland will obtain and deliver to the City a payment bond in the amount
of$1,500,000, in the form attached as Exhibit B (the "Bond"), to secure Newland's obligation to
pay the Capacity Payment to the City as provided in this Agreement.
3. Plans. The HEC Line will be designed by Camp, Dresser, McKee, Inc. (the
"Engineer"). Upon completion of the preliminary plans and specifications for the HEC Line (the
"Plans"), the Engineer will submit a set of the Plans to the City and Newland for review and
approval. Newland agrees to review the Plans and either approve them or provide written
comments specifically identifying any required changes within 10 days of receipt. Such
approval shall not be unreasonably withheld. If Newland fails to either approve the Plans or
provide written comments within this 10-day period, the Plans will be deemed approved. No
changes which would adversely affect the capacity to be allocated to and reserved for Newland,
on behalf of the District, or the District's ability to connect to the HEC Line to utilize such
capacity, may be made to the Plans unless the changes are submitted to Newland, which will
have the same review and approval rights as provided above.
4. Construction Schedule. The City will proceed with the design of, easement
acquisition for, and construction of the HEC Line, as shown on Exhibit A. in accordance with the
schedule attached as Exhibit C.
EXHIBIT
It
152666-10 04/15/2004
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A
5. Bidding and Contract Award. The contract for construction of the HEC Line will
be advertised for bid by the City in accordance with all applicable legal requirements, including
Chapter 271, Local Government Code. A copy of the bid tabulation and recommended award
will be provided to Newland by the City.
6. Construction. The HEC Line will be constructed in a good and workmanlike
manner, and all material used in such construction will be substantially free from defects and fit
for its intended purpose. Newland or the District may, at its own expense, inspect such
construction.
7. Progress Reports; Pay Estimates. The Engineer will provide Newland and the
City with monthly construction status reports.
8. Progress Payments by Newland; Acceptance. Newland agrees to fund the
Capacity Payment to the City as follows:
Upon bid opening: $375,000
Upon 25%completion: $375,000
Upon 75%completion: $375,000
Upon acceptance of the HEC Line by the City: $375,000
The City will deliver written notice to Newland of each payment due,-which will be
accompanied by the appropriate support documentation (with respect to the bid opening, a copy
of the bid tabulation and recommended award and with respect to each phase of completion, a
copy of the related pay request and the project engineer's approval of the related percentage of
the work). Newland will fund the payment within 30 days after receipt of the related request and
supporting documentation, and will be entitled,upon such payment, to reduce the amount of the
Bond so that the Bond at all times corresponds with the total remaining amount of the Capacity
Payment due to the City under this Agreement.
Promptly following completion of construction, and Newland's final payment to the City,
the City will return the Bond to Newland. If Newland fails to pay any sum due to the City as set
out herein,the City may require payment under and in accordance with the Bond.
9. Guarantee and Reservation of Capacity. Upon completion of the HEC Line and
payment of the entire Capacity Payment to the City as required under this Agreement, 1588
LUES of capacity in the HEC Line will be irrevocably and permanently reserved for and
committed to Newland, on behalf of the District. Newland may, at any time, transfer such
capacity to the District by written notice to the City.
10. Connection of District Line to HEC Line. The City acknowledges that service to
the District from the HEC Line will require the construction of a new line to connect to the HEC
Line in an easement as shown on Exhibit "D". This line will be constructed by Newland, on
behalf of the District, at Newland's sole expense. The City agrees to cooperate with Newland in
order to facilitate the necessary construction and connection of the line to the HEC Line. as
required for the District to utilize the capacity reserved for the District under this Agreement.
2
182666-10 04/15/2004
including permitting the District to access and connect to the HEC Line at a manhole located on
the HEC Line at the point of connection indicated on Exhibit "D".
11. Miscellaneous.
a. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto regarding the subject matter, and supersedes any prior agreements or
understandings regarding the Original Interceptor. This Agreement can be amended only by
written agreement signed by the parties hereto, and by reference made a part hereof.
b. Binding Effect. This Agreement, and the terms, covenants, and-conditions
herein contained, will inure to the benefit of and be binding upon the parties and their respective
successors and assigns. y
C. Notice. Any notice or other communication ("Notice") given by any party
to the other under this Agreement must be in writing. Notice must be given: (i)by depositing the
Notice in the United States Mail, postage paid, certified, and addressed. to the party to be
notified, with return receipt requested; or (ii)by delivering the Notice to the party, or an agent of
the party. Notice deposited in the mail in the manner specified will be effective three,days after
deposit. Notice given in any other manner will be effective only if and when received by the
party to be notified. For the purposes of notice, the addresses of the parties will, until changed as
provided below, be as follows:
City: City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Attn: City Manager
With Required Copy to: Steve Sheets
Sheets & Crossfield
309 E. Main Street
Round Rock, Texas 78664-5264
Newland: NNP Teravista, L.P.
P. O. Box 1268
Round Rock, Texas 78680-1268
Attn: Vice President
With Required Copy to: NNP TV Communities, L.P..
9404 Genesee Avenue, Suite 230
La Jolla, California 92037
Attn: Chief Executive Officer
And to: Sue Brooks Littlefield
Armbrust & Brown. L.L.P.
100 Congress Avenue, Suite 1300
Austin, Texas 78701
152666-10 04/15/2004 J
The parties may change their respective addresses for purposes of notice by giving at
least five days written notice of the new address to the other party.
d. Time. Time is of the essence in the performance of this Agreement. If any date
or any period provided in this Agreement ends on a Saturday, Sunday or legal holiday, the
applicable period will be extended to the next business day.
e. Assignment. Except for an assignment by Newland to the District, which the City
hereby approves, this Agreement and the rights and obligations of a party hereunder may not be
assigned by any party without the consent of the other party, which will not be unreasonably
withheld or delayed.
f. Severability. If any provision of this Agreement is illegal, invalid, or
unenforceable under present or future laws, it is the intention of the parties that the remainder of
this Agreement not be affected thereby, and it is also the intention of the parties that, in lieu of
each provision of this Agreement that is illegal, invalid, or unenforceable, there be added as a
part of this Agreement a provision as similar in terms to the illegal, invalid, or unenforceable
provision as is possible, and is legal,valid, and enforceable.
g. Default. If either party defaults in the performance of its obligations hereunder
for any reason,the other party will be entitled to pursue all remedies available at law or in equity.
In the event of any lawsuit based on this Agreement, the prevailing party will be entitled to
recover reasonable attorney's fees and related costs.
h. Waiver. Any failure by a party hereto to insist, or any election by a party hereto
not to insist, upon strict performance by the other party of any of the terms; provisions, or
conditions of this Agreement will not be deemed to be a waiver thereof or of any other term,
provision, or condition hereof, and such party will have the right at any time or times thereafter
to insist upon strict performance of any and all of the terms,provisions, and conditions hereof.
i. Applicable Law and Venue. The construction and validity of this Agreement will
be governed by the laws of the State of Texas. Venue will be in a court of appropriate
jurisdiction in Williamson County, Texas.
j. Paragraph Headings. The paragraph headings contained in this Agreement are for
convenience only and will in no way enlarge or limit the scope or meaning of the various and
several paragraphs hereof.
k. Construction. Wherever appropriate, the masculine gender may include the
feminine or neuter, and the singular may include the plural, and vice versa. Both parties have
participated in the negotiation and drafting of this Agreement; therefore, in the event of any
ambiguity, the provisions of this Agreement will not be construed for or against either party.
1. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which will be deemed an original, but all of which will constitute one and
the same instrument. Signature by facsimile will be deemed to have the same effect as an
original.
4
182666-10 04/1512004
M. Authority. Each person executing this Agreement represents that he' is an
authorized representative and has the authority to sign this document on behalf the.respective
party-
n. Exhibits. The following exhibits are attached to this Agreement and incorporated
herein by reference:
Exhibit A: Location Map and Design Parameters for HEC Line
Exhibit B: Foran of Bond
Exhibit C: Design; Easement Acquisition, and Construction Schedule for
HEC Line
Exhibit D: Location Map for New Line to Connect the District to the HEC
Line
1 82666-1 0 04/15/2004
Executed to be effective on the date the last party signs.
NNP-TERAVISTA, LP.., a Texas limited partnership
By: NNP-TV COMMUNITIES, LP
a Texas limited partnership
Its General Partner
By: NNP- TV MANAGEMENT, LLC
a Delaware limited liability company
Its Gen al Partner
By:
Printed Name ppFW=K _THOMAS
Title: SR.VICE PRESIDENT
By:
Printeo4ame
Title: 11ise
Date:
CITY OF ROUND ROCK,TEXAS
By:
Nyle Maxwell, Mayor
6
182666.10 04/15/2004
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EXHIBIT A
HEC LINE
(Avery Farm Wastewater Interceptor)
CDM
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FIRST TERM PREMIUM FULLY EARNED
Bond Number : SU
Premium (Two Years) : S 0.00
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS: That, NNP-TERAVISTA, L.P., as Principal, and the ARCH
INSURANCE COMPANY, a corporation organized and existing under the laws of the State of MISSOURI and
authorized to transact surety business in the State of Texas as Surety,are held and firmly bound unto City of Round
Rock, Texas, as Obligee, in the sum of ONE MILLION FIVE HUNDRED THOUSAND AND NO/100's
DOLLARS($1,500,000.00), for which the payment whereof,well and truly to be made, said Principal and Surety
bind themselves,their heirs,administrators,successors,and assigns,jointly and severally,firmly by these presents.
THE Condition of the foregoing obligation is such that, whereas the above,bounden Principal has entered into a
Memorandum of Agreement with the City of Round Rock,Texas,under which the Principal is obligated to pay One
Million Five Hundred,Thousand and no/]00 Dollars of the cost of construction of a wastewater line designated in
the Memorandum of Agreement as the HEC Line,
NOW,THEREFORE, if the above bounden Principal shall well and truly perform the payment obligations set forth
in section 8 of the Memorandum of Agreement,then this obligation shall be void; otherwise to remain in full force
and effect.
This bond shall expire and be of no further force or effect on December 1, 2005 or thirty (30) days after notice to
Principal of acceptance of the HEC line,whichever occurs first.
SIGNED,SEALED,DATED:
NNP-Teravista L.P.. Arch Insurance Company
(Principal) (Surety)
By: By:
Attorney in Fact
186556-3 04/20/2004 DIRECT CORRESPONDENCE TO:
ARCH INSURANCE COMPANY, 135 N. LOS ROBLES AVE.,PASADENA,CA 91101
PHONE(626)535-0855• FAX(626)535-0875 EXHIBIT B
Subdivision Performance Bond.dot Page 1 of 1
EXHIBIT C
DESIGN,EASEMENT ACQUISITION, AND CONSTRUCTION
SCHEDULE FOR HEC LINE
PHASE 2 DESIGN ENGINEERING SERVICES
Notice to Proceed December 1, 2003
Design December 1, 2003 to October 29, 2004
Easement Preparation January 1, 2004 to April 7, 2004
Advertise November 1, 2005
Construction January 5, 2005 to August 3, 2005
Substantial Completion July 6.2005
Exhibit C
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182666-10 04/1512004
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EXHIBIT D
Page 1 of l
DATE: May 21, 2004
SUBJECT: City Council Meeting - May 27, 2004
ITEM: 16.C.1. Consider a resolution authorizing the Mayor to execute a
Memorandum of Agreement with NNP-Teravista, L.P. for cost
participation in the construction of a wastewater line to serve
the Higher Education Center and the Williamson County
Municipal Utility District No. 11 (MUD 11).
Department: Water and Wastewater Utilities
Staff Person: Tom Clark, Director of Utilities
Justification: Newland will pay the City the sum of $1,500,000.00 (the `Capacity
Payment") for the 1588 living unit equivalents ("LUEs") of capacity
in the HEC ("Avery Farms") Wastewater Interceptor, which will be
reserved for and allocated to M.U.D. 11, as provided in this
Agreement.
Funding:
Cost: N/A
Source of funds: N/A
Outside Resources: Williamson County MUD No. 11
Background Information: Under the terms of the September 10, 1998
Development Agreement between MUD 11 and the
City, a wastewater interceptor would be constructed
from Chandler Road to the Chandler Creek/1460
wastewater interceptor by Newland and the City
would reimburse Newland for oversizing costs.
Due to the City's need to provide wastewater service
to the Round Rock Higher Education Center (the
"HEC") by August 2005, the City intends to construct
the wastewater interceptor to serve the HEC, which is
substantially the same location proposed for the
wastewater interceptor to be constructed by MUD 11
under the existing Development Agreement. This
agreement allows MUD 11 to participate in the HEC
wastewater interceptor at a cost savings to the City
and MUD 11.
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
MEMORANDUM OF AGREEMENT
On September 10, 1998, NNP-Teravista, L.P., formerly known as Newland-Round Rock
Associates, L.P. ("Newland"), and the City of Round Rock, Texas (the "City") entered into a
Development Agreement setting forth, among other provisions, the terms on which the Chandler
Road to Chandler Creek/1460 wastewater interceptor (the "Original Interceptor") would be
constructed by Newland and the City would reimburse Newland for certain oversizing costs
related to the Original Interceptor.
Due to the City's need to provide wastewater service to the Round Rock Higher
Education Center (the "HEC") by August 2005, the City intends to commence construction of a
wastewater interceptor to serve the HEC in the location shown on the attached Exhibit A, which
is substantially the same location proposed for the Original Interceptor(the "HEC Line").
In order to avoid unnecessary duplication of facilities, consistent with Section 6.02 otthe
Development Agreement, Newland and the City desire to enter into this memorandum of
agreement (this "Agreement") to set forth the terms on which the City will design, acquire all
necessary easements for, permit and construct the HEC Line, in lieu of construction by Newland
of the Original Interceptor and Newland will purchase capacity in the HEC Line which will be
reserved for and allocated to Newland on behalf of Williamson County Municipal Utility District
No. 11 (the "District").
Therefore,the City and Newland agree as follows:
1. Capacity Pay ent. Newland will pay the City the sum of $1,500,000 (the
"Capacity Payment") for 1588 living unit equivalents ("LUEs") of capacity in the HEC Line,
which will be reserved for and allocated to the District, as provided in this Agreement..
2. Payment Bond. Within 30 days of the date this Agreement is executed by both
the City and Newland,Newland will obtain and deliver to the City a payment bond in the amount
of$1,500,000, in the form attached as Exhibit B (the "Bond"), to secure Newland's obligation to
pay the Capacity Payment to the City as provided in this Agreement.
3. Plans. The HEC Line will be designed by Camp, Dresser, McKee, Inc. (the
"Engineer"). Upon completion of the preliminary plans and specifications for the HEC Line (the
"Plans"), the Engineer will submit a set of the Plans to the City and Newland for review and
approval. Newland agrees to review the Plans and either approve them or provide written
comments specifically identifying any required changes within 10 days of receipt. Such
approval shall not be unreasonably withheld. If Newland fails to either approve the Plans or
provide written comments within this 10-day period, the Plans will be deemed approved. No
changes which would adversely affect the capacity to be allocated to and reserved for Newland,
on behalf of the District, or the District's ability to connect to the HEC Line to utilize such
capacity, may be made to the Plans unless the changes are submitted to Newland, which will
have the same review and approval rights as provided above.
4. Construction Schedule. The City will proceed with the design of, easement
acquisition for, and construction of the HEC Line, as shown on Exhibit A. in accordance with the
schedule attached as Exhibit C.
182666-10 0411-5/2004
5. Biddinp, and Contract Award. The contract for construction of the HEC Line will
be advertised for bid by the City in accordance with all applicable legal requirements, including
Chapter 271, Local Government Code. A copy of the bid tabulation and recommended award
will be provided to Newland by the City.
6. Construction. The HEC Line will be constructed in a good and workmanlike
manner, and all material used in such construction will be substantially free from defects and fit
for its intended purpose. Newland or the District may, at its own expense, inspect such
construction.
7. Progress Reports; Pay Estimates. The Engineer will provide Newland and the
City with monthly construction status reports.
8. Progress Payments by Newland; Acceptance. Newland agrees to fund the
Capacity Payment to the City as follows:
Upon bid opening: $375,000
Upon 25%completion: $375,000
Upon 75% completion: $375,000
Upon acceptance of the HEC Line by the City: $375,000
The City will deliver written notice to Newland of each payment due, which will be
accompanied by the appropriate support documentation (with respect to the bid opening, a copy
of the bid tabulation and recommended award and with respect to each phase of completion, a
copy of the related pay request and the project engineer's approval of the related percentage of
the work). Newland will fund the payment within 30 days after receipt of the related request and
supporting documentation, and will be entitled, upon such payment, to reduce the amount of the
Bond so that the Bond at all times corresponds with the total remaining amount of the Capacity
Payment due to the City under this Agreement.
Promptly following completion of construction, and Newland's final payment to the City,
the City will return the Bond to Newland. If Newland fails to pay any sum due to the City as set
out herein, the City may require payment under and in accordance with the Bond.
9. Guarantee and Reservation of Capacity. Upon completion of the HEC Line and
payment of the entire Capacity Payment to the City as required under this Agreement, 1588
LUEs of capacity in the HEC Line will be irrevocably and permanently reserved for and
committed to Newland, on behalf of the District. Newland may, at any time, transfer such
capacity to the District by written notice to the City.
10. Connection of District Line to HEC Line. The City acknowledges that service to
the District from the HEC Line will require the construction of a new line to connect to the HEC
Line in an easement as shown on Exhibit "D". This line will be constructed by Newland, on
behalf of the District, at Newland's sole expense. The City agrees to cooperate with Newland in
order to facilitate the necessary construction and connection of the line to the HEC Line, as
required for the District to utilize the capacity reserved for the District under this Agreement,
2
182666-10 04/15/2004
including permitting the District to access and connect to the HEC Line at a manhole located on
the HEC Line at the point of connection indicated on Exhibit "D".
11. Miscellaneous.
a. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto regarding the subject matter, and supersedes any prior agreements or
understandings regarding the Original Interceptor. This Agreement can be amended only by
written agreement signed by the parties hereto, and by reference made a part hereof.
b. Binding Effect. This Agreement, and the terms, covenants, and conditions
herein contained, will inure to the benefit of and be binding upon the parties and their respective
successors and assigns.
C. Notice. Any notice or other communication ("Notice") given by any p4rty
to the other under this Agreement must be in writing. Notice must be given: (i) by depositing the
Notice in the United States Mail, postage paid, certified, and addressed to the party to be
notified, with return receipt requested; or (ii)by delivering the Notice to the party, or an agent of
the party. Notice deposited in the mail in the manner specified will be effective three,days after
deposit. Notice given in any other manner will be effective only if and when received by the
party to be notified. For the purposes of notice,the addresses of the parties will, until changed as
provided below, be as follows:
City: City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Attn: City Manager
With Required Copy to: Steve Sheets
Sheets & Crossfield
309 E. Main Street
Round Rock, Texas 78664-5264
Newland: NNP Teravista, L.P.
P. O. Box 1268
Round Rock, Texas 78680-1268
Attn: Vice President
With Required Copy to: NNP TV Communities, L.P..
9404 Genesee Avenue, Suite 230
La Jolla, California 92037
Attn: Chief Executive Officer
And to: Sue Brooks Littlefield
Armbrust & Brown. L.L.P.
100 Congress Avenue, Suite 1300
Austin, Texas 78701
182666-10 04/15/2004
The parties may change their respective addresses for purposes of notice by giving at
least five days written notice of the new address to the other party.
d. Time. Time is of the essence in the performance of this Agreement. If any date
or any period provided in this Agreement ends on a Saturday, Sunday or legal holiday, the
applicable period will be extended to the next business day.
e. Assignment. Except for an assignment by Newland to the District, which the City
hereby approves, this Agreement and the rights and obligations of a party hereunder may not be
assigned by any party without the consent of the other party, which will not be unreasonably
withheld or delayed.
f. Severability. If any provision of this Agreement is illegal, invalid, or
unenforceable under present or future laws, it is the intention of the parties that the remainder of
this Agreement not be affected thereby, and it is also the intention of the parties that, in lieu of
each provision of this Agreement that is illegal, invalid, or unenforceable, there be added as a
part of this Agreement a provision as similar in terms to the illegal, invalid, or unenforceable
provision as is possible, and is legal,valid, and enforceable.
g. Default. If either party defaults in the performance of its obligations hereunder
for any reason,the other party will be entitled to pursue all remedies available at law or in equity.
In the event of any lawsuit based on this Agreement, the prevailing party will be entitled to
recover reasonable attorney's fees and related costs.
h. Waiver. Any failure by a party hereto to insist, or any election by a party hereto
not to insist, upon strict performance by the other party of any of the terms, provisions, or
conditions of this Agreement will not be deemed to be a waiver thereof or of any other term,
provision, or condition hereof, and such party will have the right at any time or times thereafter
to insist upon strict performance of any and all of the terms,provisions, and conditions hereof.
i. Applicable Law and Venue. The construction and validity of this Agreement will
be governed by the laws of the State of Texas. Venue will be in a court of appropriate
jurisdiction in Williamson County, Texas.
j. Paragraph Headings. The paragraph headings contained in this Agreement are for
convenience only and will in no way enlarge or limit the scope or meaning of the various and
several paragraphs hereof.
k. Construction. Wherever appropriate, the masculine gender may include the
feminine or neuter, and the singular may include the plural, and vice versa. Both parties have
participated in the negotiation and drafting of this Agreement; therefore, in the event of any
ambiguity, the provisions of this Agreement will not be construed for or against either party.
1. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which will be deemed an original, but all of which will constitute one and
the same instrument. Signature by facsimile will be deemed to have the same effect as an
original.
4
182666-10 04/15/2004
M. Authority. Each person executing this Agreement represents that he is an
authorized representative and has the authority to sign this document on behalf the,respective
Ply•
n. Exhibits. The following exhibits are attached to this Agreement and incorporated
herein by reference:
Exhibit A: Location Map and Design Parameters for HEC Line
Exhibit B: Form of Bond
Exhibit C: Design, Easement Acquisition, and Construction Schedule for
HEC Line
Exhibit D: Location Map for New Line to Connect the District to the NEC
Line
5
182666-10 04/15/2004
Executed to be effective on the date the last party signs.
NNP-TERAVISTA,LP.., a Texas limited partnership
By: NNP-TV COMMUNITIES, LP
a Texas limited partnership
Its General Partner
By: NNP- TV MANAGEMENT, LLC
a Delaware limited liability company
Its Gen 1 Partner
By:
Printed Name DEREK c_-momAs
Title: SH.VICE PRESIDENT
By:
Printe ame
Title: ,o .:,,e.,.
Date: l�i>.' , a C)(-)
CITY OF ROU DOC- S
By:
e ell, Mayor
6
1 82666-1 0 04/15/2004
I/
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a
v
0
a
1500'
MAY FAMILY LP •• NNP—TERAVISTA LP
a \.\.O i
M
O \p
\\ AVERY RANCH GQ` • NNP—TE STA
LP
\.\ COMPANY LTD
HEC ••\
J
ARDALIA E.
s .\ MARTIN \
4
15' WW
0 21
4WW
24' WW AVERY RANCH
_ 24" WW�:
x 18" COMPANY LTD I
cc
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5 ESTATE OF 1 WW
RUDOLPH WALLIN •—..�� 5" WWW
AVERY
TED SELBY AND \ RANCH
GWEN SELBY � AVERY RANCH PANY NELSON
COMPANY LTD LTD HOMESTEAD FAMILY
EXHIBIT A
wA:v„na .,r.„s HEC LINE
.R._ (Avery Farm Wastewater Interceptor)
CDM
ARCH INSURANCE COMPANY
FIRST TERM PREMIUM FULLY EARNED
Bond Number : SU
Premium (Two Years) : S 0.00
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS: That, NNP-TERAVISTA, L.P., as Principal, and the ARCH
INSURANCE COMPANY, a corporation organized and existing under the laws of the State of MISSOURI and
authorized to transact surety business in the State of Texas as Surety, are held and firmly bound unto City of Round
Rock, Texas, as Obligee, in the sum of ONE MILLION FIVE HUNDRED THOUSAND AND NO/100's
DOLLARS ($1,500,000.00), for which the payment whereof, well and truly to be made, said Principal and Surety
bind themselves,their heirs,administrators,successors,and assigns,jointly and severally, firmly by these presents.
THE Condition of the foregoing obligation is such that, whereas the above bounden Principal has entered into a
Memorandum of Agreement with the City of Round Rock, Texas,under which the Principal is obligated to pay One
Million Five Hundred Thousand and no/100 Dollars of the cost of construction of a wastewater line designated in
the Memorandum of Agreement as the HEC Line,
NOW, THEREFORE, if the above bounden Principal shall well and truly perform the payment obligations set forth
in section 8 of the Memorandum of Agreement, then this obligation shall be void; otherwise to remain in full force
and effect.
This bond shall expire and be of no further force or effect on December 1, 2005 or thirty (30) days after notice to
Principal of acceptance of the HEC line,whichever occurs first.
SIGNED,SEALED,DATED:
NNP-Teravista,L.P.. Arch Insurance Company
(Principal) (Surety)
By:
By: ,Attorney in Fact
86556-3 04/20/2004 DIRECT CORRESPONDENCE TO:
ARCH INSURANCE COMPANY, 135 N. LOS ROBLES AVE., PASADENA, CA 91101
PHONE(626)535-0855-FAX(626)535-0875 EXHIBIT B
Subdivision Performance Bond.dot Page 1 Of I
EXHIBIT C
DESIGN,EASEMENT ACQUISITION, AND CONSTRUCTION „
SCHEDULE FOR HEC LINE
PHASE 2 DESIGN ENGINEERING SERVICES
Notice to Proceed December 1, 2003
Design December 1. 2003 to October 29, 2004
Easement Preparation January 1, 2004 to April 7, 2004
Advertise November 1, 2005
Construction January 5, 2005 to August 3, 2005
Substantial Completion July 6, 2005
Exhibit C
Page 1 of 1
182666-10 04/15/2004
0 100 120200 300 400 qG �'4� A•�../
LEGEND fl�T yg9
G
• 1/2" IRON ROD FOUND
0 1/2- IRON ROD WITH
CAP SET
P.O B. POINT OF BEgNNING V�� Q`,P 4 \� 0`
P.O.C. POINT OF'
COMMENCEMENT �\V � L7 �� �/ �g�1G � ATION-
� L
Yq�� QpRP SEMEN pXIMTE LINE
'(�
OF T 4U�0�' / 5�uG ON EP % SURVEY
S E.��
1� Gp SSR
o. `04p �G' N i
.N roi.Q- �. N
JOHN T. BILC•'OS �Qi�O' tp
O
ya \
s.90 4998 �� Q G�,• �. / p;ND�RS9
/ tT V1i
REMNANT PORTION OF
(PARCEL TWO)
/ (A CALLED 1200.19 ACRE TRACT)
101 .376 ACRES AVERY RANCH COMPANY, LTD.
TEXAS STATE UNIVERSITY 5Y57_M DOC. *20020713360•P,R.411.C., -TEXAS
DOC. NO. 2004014440 /
15' /
50' TEMPORARY
CONSTRUCTION EASEMENT
V
LINE TABLE
No. 18eorinu Distance
Lt I 541'18'58"E 40.00'
W _L R3 L2 S43'37'37"W 217.25'
L3 N20'22'39"W 26.02'
,V, / L4 N43'37'37"E 227.45'
M.U.D. NO.11 ,� / L5 N41'18'58"W 25.00'
2 / L6 N43'35'35"E 73.41'
/ L7 S46'22I23"E 20.07'
NP R L3 / LS N43-37.37"E 136.26'
SITE CURVE TABLE
No, Delto Rodius Aro Len th Chord Length Chord Beon
c C1 00'56'40" 910.00 15.00 15.00 N48'42'43"E
u 3, / C2 05'34'54" 870.00 84,75 84.72 546'24'59"W
63 04'36'06" 885.00 71.08 71.06 N45'55'35"E
VICINITY MHP S20'22'39� .
C4 04'36'51" 910.00 73.28 73.26 N45'55'57"E
N07 TO SCALE 819.91'
SKETCH TO ACCOMPANY DESCRIPTION
OF A 0.536 ACRE TRACT OF LAND OUT OF THE BARNEY C. LOW,
P Bury+Partners ABSTRACT NO, 385 AND THE N. B. ANDERSON SURVEY, ABSTRACT MUNICIPAL UTILITY
1 ILITY
�On8U1tIR Engineers end Surveyors NO. 29. BEING A PART OF THE REMAINING PORTION OF THAT
8 B Y CERTAIN 1200.19 ACRE TRACT OF LAND OF RECORD IN DOCUMENT DISTRICT NO. 1h
Aumun,Tetee Tel 512/728-0011 FAA 512/328-0925 NO. 2002071336 OF THE OFFICIAL PUBLIC RECORDS OF WILLIAMSON
Bury+P.rin—Inc."yr4ki 2804 COUNTY, TEXAS. SITUATED IN WILLIAMSON COUNTY, TEXAS.
DATE: 04%09/04FILE: H:\1149\25\114925X10.dwg FN No.: 04-it2(MMj 1PioNN EY: M!,A PROJ. No: 1340-02.00
EXHIBIT D
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