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R-07-07-26-10C1 - 7/26/2007 RESOLUTION NO. R-07-07-26-10C1 WHEREAS, as part of the City-wide Hike and Bike Trail Program, the City of Round Rock ("City") plans to construct a sidewalk and hike trail within the Turtle Creek Subdivision, and WHEREAS, a portion of said trail shall be constructed by the City and the remaining portion shall be constructed by DR Horton, Inc. ("Developer") , and WHEREAS, the City and Developer desire to enter into a Development Agreement to set forth in writing their mutual obligations, 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 Development Agreement with DR Horton, Inc. , a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 26th day of July, 200zi� NY Mayo Ci y ATTES of ound Rock, Texas CHRISTINE R. MARTINEZ,, City Secreta 0:\Wdox\RESOLUPI\R70726C1.WPD/MC DEVELOPMENT AGREEMENT This DEVELOPMENT AGREEMENT(this"Agreement")is executed between D R Horton(the"Owner")and the City of Round Rock,Williamson County,Texas(the"W'),to be effective (the"Effective Date"). ARTICLE I RECITALS WHEREAS,the City is a home rule municipal corporation of the State of Texas; and WHEREAS,Owner is a Texas Corporation; and WHEREAS,Owner and the City are sometimes individually referred to as a"Party"and collectively as the"Parties";and WHEREAS,the City desires to install and construct a seven foot(7') sidewalk and hike trail at the location shown in Exhibit"A",attached hereto and incorporated herein("City Trail"); and WHEREAS, Owner desires to install and construct a seven foot (7') concrete sidewalk and trail("Turtle Creek Trail")which connects to the City Trail at the location shown in Exhibit "A" and NOW THEREFORE, for and in consideration of the mutual obligations of the Parties set forth in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are acknowledged,the Parties agree as follows. ARTICLE II GENERAL PROVISIONS 2_1 Project. As part of the City-wide Hike and Bike Trail Program, the City has planned for the construction of a sidewalk and trail within the Turtle Creek Subdivision in the location shown in Exhibit"A" (the "Project'). A portion of said trail shall be constructed by the City and the remaining portion shall be constructed by the Owner,or his successors or assigns. 2_2 City Obligation. Within two years of the execution of this Agreement by both parties, the City shall install approximately 1,950 linear feet of a seven foot(7') wide sidewalk and trail constructed of decomposed granite at the location as shown on Exhibit "A". The City Trail shall be constructed on City property or on property conveyed to the City by easement. The City shall be responsible for the maintenance of the City Trail and, after installation, the Turtle Creek Trail. Additionally, the City shall grant the Owner a temporary construction easement for subdivision improvements,in a form approved by the City Attorney,through the public parkland 1 "A" O 15523.00011:1001041.02 lot which the City Trail and Turtle Creek Trail will be constructed being shown on Exhibit"A" and will be agreed upon by both parties prior to construction. 2_3 Owner Obligation. Within three (3)years of the execution of this Agreement by both parties or when a sidewalk is required to be constructed by Owner pursuant to City regulations, whichever occurs earliest, the Owner, or his successors or assigns, shall install a seven foot (7') concrete trail from approximately the southern boundary of Greenlawn Park to A.W. Grimes Blvd., as shown on Exhibit "A". The Turtle Creek Trail may be constructed on City property or Owner property. If any portion of the City Trail or the Turtle Creek Trail is located on property owned by Owner, then the Owner shall convey an easement to the City in a form approved by the City Attorney. Prior to installation, Owner shall submit all construction plans to the City Parks Department for approval. Additionally, Owner shall grant one or more construction and public access easements in a form approved by the City Attorney through the HOA Amenity Center lot (north of the drainage channel and west of A.W. Grimes Blvd) and through the condominium lot (south of the drainage channel), the approximate location of both easements being shown on Exhibit "A" and will be agreed upon by both parties prior to construction. ARTICLE III MISCELLANEOUS PROVISIONS 3.1 Recitals. The recitals contained in this Agreement: (a) are true and correct as of the Effective Date; (b) form the basis upon which the Parties negotiated and entered into this Agreement; and (c) reflect the intent of the Parties with regard to the subject matter of this Agreement. If it becomes necessary to interpret any provision of this Agreement, the intent of the Parties, as evidenced by the recitals, shall be given full effect. The Parties have relied, to their material detriment, upon the recitals as part of the consideration for entering into this Agreement,and,but for the recitals,the Parties would not have entered into this Agreement. 3_2 Term. The term of this Agreement shall be fifteen (15) years from the Effective Date. 3_3 Authority, The City represents and warrants that this Agreement has been approved by the action of the City Council of the City in accordance with all applicable public meeting and public notice requirements (including, but not limited to, notices required by the Texas Open Meetings Act) and that the individual executing this Agreement on behalf of the City has been authorized to do so. Owner represents and wan-ants that this Agreement has been approved by appropriate action of Owner and that the individual executing this Agreement on behalf of Owner has been authorized to do so. 3_4 No Third Party Beneficiaries. This Agreement only inures to the benefit of,and may only be enforced by, the Parties. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third-party beneficiary of this Agreement. 2 015523.00011:1001041.02 Entire Aereement: Amendment.* Severability. (a) This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, whether oral or written, concerning the subject matter of this Agreement. (b) This Agreement shall not be modified or amended except in writing signed by the Parties. A copy of each amendment to this Agreement, when fully executed and recorded, shall be provided by Owner to each Successor (based on the records maintained by Owner and Successors pursuant to this Agreement); however, the failure of Owner to do so shall not affect the validity of any amendment. (c) If any provision of this Agreement is determined by a court to be unenforceable, the unenforceable provision shall be deleted from this Agreement, the unenforceable provision shall,to the extent possible,be rewritten to be enforceable and to give effect to the intent of the Parties, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Parties. 3_6 Notices. Any notice or other communication required by this Agreement to be given, provided, or delivered to a Party shall be in writing addressed to the Parties as set forth below. Notices shall be considered "given" for purposes of this Agreement: (a) if by Certified Mail, five business days after deposited with the U.S. Postal Service, Certified Mail, Return Receipt Requested; (b) if by private delivery service(e.g., FedEx or UPS), on the date delivered to the notice address as evidenced by a receipt signed by any person at the notice address; (c) if by FAX,when sent,or(d) if by any other means(including,but not limited to,e-mail if an email address is provided below),when actually received by the Party at the notice address. The City of Round Rock Jim Nuse City Manager 221 E.Main Street Round Rock,TX 78664 With a copy to: Stephan L. Sheets City Attorney 309 E. Main Street Round Rock,TX 78664 Each Party has the right to change, from time to time, its notice addresses by giving at least 10 days written notice to the other Parties. If any time period provided in this Agreement ends on a Saturday, Sunday, or legal holiday, the period shall be extended to the first business day following such Saturday, Sunday or legal holiday. 3 015523.00011:1001041.02 3_7 i e. Time is of the essence in the performance by the Parties of their respective obligations under this Agreement. 3_8 Applicable Law and Venue. This Agreement shall be interpreted in accordance with the laws of the State of Texas. Venue shall be in Williamson County,Texas. 3_9 Non-Waiver. If a Party fails to insist on strict performance of any provision of this Agreement, such failure shall not be deemed a waiver by such Party of its right to insist on strict performance of such provision in the future or strict performance of any other provision of this Agreement. 3.10 Binding Effect. This Agreement is a covenant running with the land and shall be binding on all subsequent owners of all or any portion of the Property. 3.11 Governmental Powers: Waivers of Immunity. By its execution of this Agreement, the City does not waive or surrender any of its governmental powers, immunities, or rights. 3.12 Assignment. This Agreement may be assigned by Owner to a successor owner of the property. 3.12 Exhibits. The following exhibits are attached to this Agreement and are incorporated as part of this Agreement for all purposes as if set forth in full in the body of this Agreement. Exhibit A The Property ATTEST: CITY OF ROUND ROCK,TEXAS By: Name: Nyle Maxwell Name: Christine Martinez Title: Mayor City Secretary Date: D R HORTON,INC. a Texas Corporation By: Printed Name: Title: 4 015523.00011:1001041.02 STATE OF TEXAS § COUNTY OF Williamson § This instrument was acknowledged before me on 2007 by for DR Horton, Inc., a Texas Corporation,on behalf of said corporation. Notary Public in and for the State of Texas STATE OF TEXAS § COUNTY OF WILLIAMSON § This instrument was acknowledged before me on 2007, by Nyle Maxwell, Mayor of the City of Round Rock, Texas, a Texas Home Rule City, on behalf of said city. Notary Public in and for the State of Texas 5 015523.00011:1001041.02 +;�-°"' tea^':" '.."" ,! � ,,<�``�♦♦, j/,1 f R� � ��♦V 7'Concrete Sidewalk/Trail Constructed by D.R. Horton "TURTLE CREEK TRAIL"74 IX j j � Q1 j to � 3 '+,. n'� � P' s;1 �. v f �• t� 7' Decomposed Granite : ` a Sidewalk/Trail Constructed € by the City of Round Rock a , "CITY TRAIL" _ - Public Access Easement to be Recorded after Trail Construction is Complete Ix- I f � 'FD T. EXHIBIT `A' LOCATION OF CITY TRAIL AND TURTLE CREEK TRAIL DATE: July 20, 2007 SU83ECT: City Council Meeting - July 26, 2007 ITEM: 10C1. Consider a resolution authorizing the Mayor to execute a Development Agreement with DR Horton, Inc. for the Turtle Creek Trail Department: Parks and Recreation Staff Peen: Rick Atkins, Parks and Recreation Director David Buzzell, Park Development Manager Justification: The Greater Lake Creek Park project is constructing trail in a location where DR Horton would be required to build sidewalk in the Turtle Creek Subdivision. Instead of constructing a 4'wide sidewalk adjacent to a 7'wide trail, this Development Agreement requires DR Horton to construct a 7' wide concrete trail in the northern part of the subdivision (adjacent to Lake Creek) in lieu of the 4' sidewalk. This will expand the Greater Lake Creek Trail system an additional 2,500 I.f. without any additional cost to the City. Fundina: Cost: N/A Source of funds: N/A Outside Resources:. DR Horton, Inc. Backaround Information: N/A Public Comment,:, N/A a copDEVELOPMENT AGREEMENT This DEVELOPMENT AGREEMENT(this"Agreement')is execute: Continental Homes of Texas,L.P. a Texas limited partnership by CHTEX of Texas, nc. a Delaware corporation(the"Owner")and the City of Round Rock, Williamson County, Texas (the"W'),to be effective (the"Effective Date"). ARTICLE I RECITALS WHEREAS,the City is a home rule municipal corporation of the State of Texas;and WHEREAS,Owner is a Texas Corporation;and WHEREAS,Owner and the City are sometimes individually referred to as a"Party"and collectively as the"Parties"; and WHEREAS,the City desires to install and construct a seven foot(7') sidewalk and hike trail at the location shown in Exhibit"A", attached hereto and incorporated herein("City Trail"); and WHEREAS, Owner desires to install and construct a seven foot (7') concrete sidewalk and trail ("Turtle Creek Trail")which connects to the City Trail at the location shown in Exhibit "A" and NOW THEREFORE, for,and in consideration of the mutual obligations of the Parties set forth in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are acknowledged,the Parties agree as follows. ARTICLE H GENERAL PROVISIONS 2_1 Proiect. As part of the City-wide Hike and.Bike Trail Program, the City has planned for the construction of a sidewalk and trail within the Turtle Creek Subdivision in the location shown in Exhibit"A" (the"Project"). A portion of said trail shall be constructed by the City and the remaining portion shall be constructed by the Owner,or his successors or assigns. 2_2 City ObReation. Within two years of the execution of this Agreement by both parties, the City shall install approximately 1,950 linear feet of a seven foot (7') wide sidewalk and trail constructed of decomposed granite at the location as shown on Exhibit "A". The. City Trail shall be constructed on City property or on property conveyed to the City by easement. The City shall be responsible for the maintenance of the City Trail and, after installation, the Turtle Creek Trail. Additionally,the City shall grant the Owner a temporary construction easement for subdivision improvements,in a form approved by the City Attorney,through the public parkland �Q 0/-o I o(&-j 0e 1 015523.00011:1001041.02 lot which the City Trail and Turtle Creek Trail will be constructed being shown on Exhibit"A" and will be agreed upon by both parties prior to construction. 2_3 Owner Obligation. Within three(3)years of the execution of this Agreement by both parties or when a sidewalk is required to be constructed by Owner pursuant to City regulations, whichever occurs earliest, the Owner, or his successors or assigns, shall install a seven foot (7') concrete trail from approximately the southern boundary of Greenlawn Park to A.W. Grimes Blvd., as shown on Exhibit "A". The Turtle Creek Trail may be constructed on City property or Owner property. If any portion of the City Trail or the Turtle Creek Trail is located on property owned by Owner, then the Owner shall convey an easement to the City in a form approved by the City Attorney. Prior to installation, Owner shall submit all construction plans to the City Parks Department for approval. Additionally, Owner shall grant one or more construction and public access easements in a form approved by the City Attorney through the HOA Amenity Center lot (north of the drainage channel and west of A.W. Grimes Blvd) and through the condominium lot (south of the drainage channel), the approximate location of both easements being shown on Exhibit "A" and will be agreed upon by both parties prior to construction. The public access easements shall be no more than twenty (20) feet in width and shall not interfere with proposed improvements by the Owner on these lots. ARTICLE III MISCELLANEOUS PROVISIONS 331 Recitals. The recitals contained in this Agreement: (a) are true and correct as of the Effective Date; (b) form the basis upon which the Parties negotiated and entered into this Agreement; and (c) reflect the intent of the Parties with regard to the subject matter of this Agreement. If it becomes necessary to interpret any provision of this Agreement, the intent of the Parties, as evidenced by the recitals, shall be given full effect. The Parties have relied, to their material detriment, upon the recitals as part of the consideration for entering into this Agreement,and,but for the recitals,the Parties would not have entered into this Agreement. 3_2 Term. The term of this Agreement shall be fifteen (15)years from the Effective Date. 3_3 Authors . The City represents and warrants that this Agreement has been approved by the action of the City Council of the City in accordance with all applicable public meeting and public notice requirements (including, but not limited to, notices required by the Texas Open Meetings Act) and that the individual executing this Agreement on behalf of the City has been authorized to do so. Owner represents and warrants that this Agreement has been approved by appropriate action of Owner and that the individual executing this Agreement on behalf of Owner has been authorized to do so. 3_4 No Third Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Parties. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third-party beneficiary of this Agreement. 2 015523.00011:1001041.02 3_5 Entire,Agreement; Amendment, Severability. (a) This Agreement constitutes the entire agreement between the Parries and supersedes all prior agreements and understandings, whether oral or written, concerning the subject matter of this Agreement. (b) This Agreement shall not be modified or amended except in writing signed by the Parties. A copy of each amendment to this Agreement, when fully executed and recorded, shall be provided by Owner to each Successor (based on the records maintained by Owner and Successors pursuant to this Agreement); however, the failure of Owner to do so shall not affect the validity of any amendment. (c) If any provision of this Agreement is determined by a court to be unenforceable, the unenforceable provision shall be deleted from this Agreement, the unenforceable provision shall,to the extent possible,be rewritten to be enforceable and to give effect to the intent of the Parties, and the remainder of this.Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Parties. 3_6 Notices. Any notice or other communication required by this Agreement to be given, provided, or delivered to a Party shall be in writing addressed to the Parties as set forth below. Notices shall be considered "given" for purposes of this Agreement: (a) if by Certified Mail, five business days after deposited with the U.S. Postal Service, Certified Mail, Return Receipt Requested; (b) if by private delivery service (e.g., FedEx or UPS), on the date delivered to the notice address as evidenced by a receipt signed by any person at the notice address; (c) if by FAX,when sent, or(d)if by any other means(including, but not limited to,e-mail if an email address is provided below), when actually received by the Party at the notice address. The City of Round Rock Jim Nuse City Manager 221 E.Main Street Round Rock,TX 78664 With a copy to: Stephan L. Sheets City Attorney 309 E. Main Street Round Rock,TX 78664 _I.�.-, .•�- nom•�, Each Party has the right to change, from time to time,its notice addresses by giving at least 10 days written notice to the other Parties. If any time period provided in this Agreement ends on a Saturday, Sunday, or legal holiday, the period shall be extended to the fust business day following such Saturday, Sunday or legal holiday. 3 015523.00011:1001041.02 3_7 Time. Time is of the essence in the performance by the Parties of their respective obligations under this Agreement. 3_8 Ayylicable Law and Venue. This Agreement shall be interpreted in accordance with the laws of the State of Texas. Venue shall be in Williamson County,Texas. 3_9 Non-Waiver. If a Party fails to insist on strict performance of any provision of this Agreement, such failure shall not be deemed a waiver by such Party of its right to insist on strict performance of such provision in the future or strict performance of any other provision of this Agreement. 3.10 Bindine Effect. This Agreement is a covenant running with the land and shall be binding on all subsequent owners of all or any portion of the Property. 3.11 Governmental Powers; Waivers of Immunity. By its execution of this Agreement,the City does not waive or surrender any of its governmental powers, immunities, or rights. 3.12 Assignment. This Agreement may be assigned by Owner to a successor owner of the property. 3.12 Exhibits. The following exhibits are attached to this Agreement and are incorporated as part of this Agreement for all purposes as if set forth in full in the body of this Agreement. Exhibit A Tile Property ATTEST: CITY O EXAS By: _ Nam well Name: Christine Martinez Title: MaI—a4p City Secretary Date: —0 7 Continental Homes of Texas,L.P. a Texas limited partnership by CHTEX of Texas, Inc.a Delaw c rat' >K By: Prin d N h,.:,,,. Title: 1 4 015523.00011:1001041.02 STATE OF TEXAS § COUNTY OF Williamson § This ient was a 1 wl $ed of re me on 2007 by for Continental.Hdmes of Texas, a Texas limited partnership by CHTEX of Texas, Inc. a Delaw ration, on behalf of said corporation. """"Ng as '< ••ARY PV . �acCt�_� epi•'�N ? n N w OFd for the State of Texas STATE OF TEXAS�trrrrrr""°n•.ari4 § COUNTY OF WILLIAMSON § This instrument was acknowledged before me on 2007, by Nyle Maxwell, Mayor of the City of Round Rock, Texas,a Texas Home Rule City, on behalf of said city. Notary Public in and for the State of Texas 5 015523.00011:1001041.02 EXHIBIT A LOCATION OF CITY TRAIL AND TURTLE CREEK TRAIL Exhibit A—Page I 1' 015523.00011:1001041.02 4 g r Y 44 ak ` 7'Concrete Sidewalk/Trail '' { w A � Constructed by D.R. Horton "TURTLE CREEK TRAIL" � ' a" 7 Decomposed Granite e g Sidewalk/Trail Constructed5;: ' by the City of Round Rock "CITY TRAIL" Public Access Easement to be Recorded after Trail Construction is Complete t � w t 9 y k EXHIBIT `A' LOCATION OF CITY TRAIL AND TURTLE CREEK TRAIL �..