HomeMy WebLinkAboutORD 2020-35 - Dev. Agrmt Oaks at San GabrielORDINANCE NO. !Zv [.OJ5
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS APPROVING THE "SECOND AMENDMENT
TO THE DEVELOPMENT AGREEMENT CONCERNING THE OAKS
AT SAN GABRIEL SUBDIVISION," A SUBDIVISION IN
WILLIAMSON COUNTY, TEXAS CONSISTING OF
APPROXIMATELY 397.768 ACRES GENERALLY SITUATED NORTH
OF SH 29 AND EAST OF THE CIMARRON HILLS SUBDIVISION;
REPEALING CONFLICTING ORDINANCES AND RESOLUTIONS;
INCLUDING A SEVERABILITY CLAUSE; AND ESTABLISHING AN
EFFECTIVE DATE.
WHEREAS, Oaks at San Gabriel, L.L.C., a Texas limited liability company
("Oaks"), is the developer of approximately 397.768 acres of land known locally as the
Oaks at San Gabriel Subdivision (the "Property").
WHEREAS, on May 10, 2007, City of Georgetown, Texas ("City") and Oaks
entered into that certain "Development Agreement Concerning the Oaks at San Gabriel
Subdivision", recorded in the Official Records of Williamson County as Document No.
2007040907, and on December 4, 2007 entered into that certain "First Amendment to the
Development Agreement Concerning the Oaks at San Gabriel Subdivision", recorded in
the Official Records of Williamson county as Document No. 2008001039 (together, the
"Development Agreement")
WHEREAS, Oaks has applied for an amendment to the Development Agreement
to, among other things, increase the number of residential lots that are allowed on the
Property to 944, clarify the Open Space definitions and requirements, add architectural
and masonry standards, and make other conforming changes.
WHEREAS, the "Second Amendment to Development Agreement Concerning the
Oaks at San Gabriel Subdivision" attached as Attachment 1 (the "Second Amendment")
provides for the development of the Property and construction of public infrastructure
and the City Council of the finds that it has the authority approve the Second Amendment
pursuant to Section 212.172 of the Texas Local Government Code.
Ordinance No. (OZ.() 5
Approving Second Amendment to the Development Agreement
Concerning the Oaks at San Gabriel Subdivision
Page 1
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS, THAT:
Section 1. The meeting at which this Ordinance was approved was in all things
conducted in compliance with the Texas Open Meetings Act, Texas Government Code,
Chapter 551 in effect at the time of its adoption.
Section 2. The facts and recitations contained in the preamble of this Ordinance
are hereby found and declared to be true and correct and are incorporated by reference
herein and expressly made a part hereof, as if copied verbatim. The City Council hereby
finds that this Ordinance complies with the Vision Statement of the City of Georgetown
2030 Comprehensive Plan.
Section 3. The "Second Amendment to Development Agreement Concerning the
Oaks at San Gabriel Subdivision," in substantially the form attached hereto as
Attachment 1, is hereby approved by the City Council and incorporated into this
Ordinance for all purposes by this reference.
Section 4. If any provision of this Ordinance or application thereof to any person
or circumstance, shall be held invalid, such invalidity shall not affect the other provisions,
or application thereof, of this Ordinance which can be given effect without the invalid
provision or application, and to this end the provisions of this Ordinance are hereby
declared to be severable.
Section 5. The Mayor is hereby authorized to execute this Ordinance and the
"Second Amendment to Development Agreement Concerning the Oaks at San Gabriel
Subdivision" in substantially the form attached here to as Attachment 1, and the City
Secretary to attest. The "Second Amendment to Development Agreement Concerning
the Oaks at San Gabriel Subdivision" and this Ordinance shall become effective in
accordance with the provisions of the Charter of the City of Georgetown.
Attachments:
Attachment 1— Second Amendment to Development Agreement Concerning the Oaks at
San Gabriel Subdivision" including the following exhibits to the Second Amendment:
Exhibit J — Preliminary Lot Layout
Exhibit K — Architectural and Masonry Standards
Exhibit L — Form of Intersection Signalization Fiscal Security — Letter of Credit
Exhibit M — Form of Intersection Signalization Fiscal Security — Escrow Agreement
Ordinance No. UU-35
Approving Second Amendment to the Development Agreement
Concerning the Oaks at San Gabriel Subdivision Page 2
PASSED AND APPROVED ON FIRST READING ON THE I'l DAY OF APRIL
2020.
PASSED AND APPROVED ON SECOND READING ON THE2� DAY OF APRIL
2020.
ATTEST:
Robyn Densmore, City Secretary
APPROVED AS TO FORM:
Charlie McNabb, City Attorney
THE CITY OF GEORGETOWN:
4,,,& 614'r--
Dale Ross, Mayor
Ordinance No. 5
Approving Second Amendment to the Development Agreement
Concerning the Oaks at San Gabriel Subdivision
Page 3
STATE OF TEXAS § SECOND AMENDMENT TO THE
§ DEVELOPMENT AGREEMENT
COUNTY OF WILLIAMSON § CONCERNING THE
§ OAKS AT SAN GABRIEL SUBDIVISION
CITY OF GEORGETOWN §
THIS IS THE SECOND AMENDMENT TO THE DEVELOPMENT AGREEMENT
CONCERNING THE OAKS AT SAN GABRIEL SUBDIVISION ("Second Amendment") by
and between THE CITY OF GEORGETOWN, a Texas home -rule municipal corporation
("City"), and OAKS AT SAN GABRIEL, L.L.C., a Texas limited liability company ("Oaks").
WHEREAS, Oaks is the developer of that certain property described in Document Nos.
2007035434 and 2007035435 of the Official Records of Williamson County, consisting of
approximately 397.768 acres of land (the "Property"); and
WHEREAS, on May 10, 2007, City and Oaks entered into that certain "Development
Agreement Concerning the Oaks at San Gabriel Subdivision", recorded in the Official Records
of Williamson County as Document No. 2007040907, and on December 4, 2007 entered into that
certain "First Amendment to the Development Agreement Concerning the Oaks at San Gabriel
Subdivision", recorded in the Official Records of Williamson county as Document No.
2008001039 (together, the "Development Agreement"); and
WHEREAS, on May 10, 2007, City and Oaks also entered into that certain "Offsite
Utility Construction and Cost Reimbursement Agreement for Oaks at San Gabriel Subdivision",
recorded in the Official Records of Williamson County as Document No. 2007040908, and on
December 4, 2007 entered into that certain "First Amendment to the Offsite Utility Construction
and Cost Reimbursement Agreement Concerning the Oaks at San Gabriel Subdivision", recorded
in the Official Records of Williamson County as Document No. 2008001038, and on June 8,
2010 entered into that certain "Second Amendment to the Offsite Utility Construction and Cost
Reimbursement Agreement Concerning the Oaks at San Gabriel Subdivision", recorded in the
Official Records of Williamson County as Document No. 2010076610 (collectively, the "Offsite
Utility Agreement"); and
WHEREAS, on December 4, 2007, City and Oaks also entered into that certain "Consent
Agreement", recorded in the Official Public Records of Williamson County as Document No.
2008090290, and on March 1, 2011 entered into that certain "First Amendment to Consent
Agreement", recorded in the Official Records of Williamson County as Document No.
2011017941 (together, the "Consent Agreement'), pursuant to which Oaks caused West
Williamson County Municipal Utility District No. 1 (the "District') to be created, the
boundaries of which contain the Property; and
WHEREAS, of even date herewith, City and Oaks are entering into that certain
"Amended and Restated Offsite Utility Construction and Cost Reimbursement Agreement
Concerning the Oaks at San Gabriel Subdivision" and City, Oaks and the District are entering
into that certain "Second Amendment to Consent Agreement'; and
(W0935305.10)Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement Page 1 of 10
WHEREAS, Oaks has applied for an amendment to the Development Agreement to,
among other things, increase the number of residential lots that are allowed on the Property to
944, clarify the Open Space definitions and requirements, add architectural and masonry
standards, , and to make other changes conforming to the above -referenced amendments to the
Offsite Utility Agreement and the Consent Agreement of even date herewith, as more
particularly set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
agreements set forth herein, and other good and valuable consideration, the receipt, adequacy,
and sufficiency of which are all hereby acknowledged, City and Oaks hereby agree to amend the
Development Agreement as follows:
Article I.
1.0 Section 1.1 of the Development Agreement, pertaining to Defined Terms, is
hereby amended and modified to incorporate the following:
Section 1.1 Defined Terms. In addition to the terms defined elsewhere
in Development Agreement and the Second Amendment, the following terms
shall have the following respective meanings where they appear with their initial
letters capitalized, unless otherwise more specifically provided to unless the
context in which they appear otherwise requires:
"Intersection Signalization Fiscal Security" means either an irrevocable
letter of credit to be provided by Oaks in favor of the City having a payment
amount specified in Section 4.7(d) of the Second Amendment, issued by an
issuing bank meeting the City's minimum standards and being in form attached as
Exhibit L to the Second Amendment and continuously remaining in place until
drawn upon or released by the City under the terms and conditions of the Second
Amendment; or a cash deposit received by the City from Oaks in the amount
specified in Section 4.7(d) of the Second Amendment, which shall be deposited
by the City in an escrow account pursuant to an agreement in the form attached as
Exhibit M to the Second Amendment and remain in place until drawn upon or
released by the City under the terms and conditions of the Second Amendment.
"Residential Development Areas" means the areas of the Property
designated as such on the Century Plan Amendment.
"Warrant Study" means a study consistent with Texas Department of
Transportation ("TxDOT') regulations to determine whether traffic conditions at
the intersection of Vista Heights Drive and State Highway 29 meet any federal,
state or local minimum standards or "warrants" for placement of traffic
signalization improvements.
(W0935305.10)Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement Page 2 of 10
Article II.
2.0 The first sentence of Section 3.2 of the Development Agreement, pertaining to the
Number of Residential Lots, is hereby deleted and replaced with the following:
Section 3.2 Number of Residential Lots. The number of residential lots
allowed on the Property shall not exceed NINE HUNDRED FORTY FOUR (944)
and be consistent with the preliminary lot layout attached as Exhibit J, and shall
be further restricted as follows:
Article 11I.
3.0 Section 4.1(a) of the Development Agreement, pertaining to Zoning, is hereby
deleted.
Article IV.
4.0 Section 4.2(a) of the Development Agreement, pertaining to Open Space, is
hereby amended and modified as follows:
(a) Categories of Open Space. Open Space within the Project shall
consist of the five (5) following categories:
(4) Landscape Lots. This shall include areas designed with
landscaping for beautification of the Project that are platted
as lots identified for such purposes. These lots shall be
conveyed to the homeowners association for the Project.
(5) Pond Lots. This shall include areas designed with drainage
and pond infrastructure to serve the Project that are platted
as lots identified for such purposes. These lots shall be
conveyed to the District.
Article V.
5.0 Section 4.2(f) of the Development Agreement, pertaining to Transfer of Preserved
Open Space, is hereby deleted.
Article VI.
6.0 New Section 4.6 of the Development Agreement, pertaining to Architectural and
Masonry Standards, is hereby incorporated as follows:
Section 4.6 Architectural and Masonry Standards. The architectural
and masonry standards applicable to the Residential Development Areas are set
forth on new Exhibit K shall apply to the Property, and said standards shall be
(W0935305.10}0aks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement Page 3 of 10
incorporated into the restrictive covenants encumbering such Residential
Development Areas (the "CCRs"). During the "Development Period" (as defined
in the CCRs), in the event the City determines that a homebuilder has installed or
constructed improvements on a residential lot within a Residential Development
Area that are not in compliance with any of the standards set forth on Exhibil K,
the City shall deliver written notice to Oaks identifying the specific deficiency
(i.e., masonry requirements, masonry repetition, setbacks or plan repetition) and
the street address of the subject residential lot within fifteen (15) days after
identification of the noncompliance. Oaks shall deliver a written response to the
City that either supplies documentation of compliance with the standard(s) set
forth on Exhibit K to the City's reasonable satisfaction or states the corrective
measures that Oaks will cause to occur to remedy the noncompliance and the
reasonable time period within which such corrective measures will be completed.
If Oaks should fail to timely respond to a written notice from the City as set forth
above and/or, in instances of noncompliance, cause to be completed corrective
actions within the reasonable time period provided to the City in such written
response, the City may withhold the issuance of plumbing permits and other City
authorizations within the phase of the Project in which the subject residential lot
is located until such time the documentation is provided or corrective measures
are completed.
Article VII.
7.0 New Section 4.7 of the Development Agreement, pertaining to Traffic Signalization, is
hereby incorporated as follows:
Section 4.7. Traffic Si nalizatian. Oaks shall design and build, or cause
to be designed and built, at no cost to the City, traffic signalization, intersection
and roadway improvements at the intersection of Vista Heights Drive and State
Highway 29 located in Williamson County, Texas (the "Intersection") as and
when required by TxDOT, will deliver to the City or to TxDOT any security
(bond or advance funding agreement) required by TxDOT or the City, as
applicable, and will dedicate to TxDOT any right-of-way required by TxDOT, as
follows:
(a) The City acknowledges that Oaks performed a Warrant
Study of the Intersection dated March 1, 2018 and transmitted a copy of
same to the City prior to the Effective Date of the Second Amendment.
(b) On or before 5:00 PM on the date this is one (1) year after
the Effective Date of the Second Amendment, Oaks shall, at no cost to the
City, deliver to the City a copy of an updated Warrant Study of the
Intersection.
(c) If the Warrant Study required under Section 4.7(b) of the
Second Amendment indicates traffic signal improvements are not then
required for the Intersection, Oaks shall update that Warrant Study once
(W0935305.10)Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement Page 4 of 10
every 365 days, until such time, if any, as a Warrant Study of the
Intersection indicates traffic signalization improvements are "warranted"
(i.e., determined by TxDOT to be necessary and required).
(d) If a Warrant Study obtained under Section 4.7(b) or (c)
indicates traffic signalization improvements are "warranted" at the
Intersection, then within 60 days after the date of such Warrant Study,
Oaks shall provide to the City an engineer's cost estimate approved by
TxDOT of those traffic signalization improvements TxDOT requires Oaks
to provide for the Intersection, along with Intersection Signalization Fiscal
Security equal to the amount that is 110% of the amount set out in such
cost estimate.
(e) If a Warrant Study obtained under Section 4.7(b) or (c)
indicates traffic signalization improvements are "warranted" at the
Intersection but the required traffic signalization improvements are not
constructed within 1 year after the date of the Intersection Signalization
Fiscal Security held by the City, Oaks shall obtain and submit to the City
an updated engineer's cost estimate of the traffic signalization
improvements TxDOT requires Oaks to provide, and an updated
Intersection Signalization Fiscal Security equal to the amount that is 110%
of the amount set out in such updated cost estimate. This process shall
continue annually until the required traffic signalization improvements are
completed at the Intersection.
(f) As between Oaks and the City, Oaks is responsible for
paying the cost of and building or causing to be built the traffic
signalization improvements at the Intersection required by TxDOT.
(g) As an alternative to delivering Intersection Signalization
Fiscal Security to the City as required under Section 4.7(d) or (e) after
receipt of a Warrant Study that indicates construction of traffic
signalization improvements at the Intersection is "warranted," Oaks may
deliver to the City: (a) an engineer's cost estimate approved by TxDOT
for the traffic signalization improvements TxDOT requires Oaks to
provide; and (b) documentation that (y) TxDOT and Oaks have entered
into a contract pursuant to which Oaks will perform or fund the design and
construct the applicable traffic signalization improvements; and (z) Oaks
has deposited with TxDOT all funds and/or fiscal security (if any)
required under that contract. If Oaks delivers the items described in the
prior sentence to the City after Oaks has posted Intersection Signalization
Fiscal Security with the City under Section 4.7(d) or (e), the City will
return the Intersection Signalization Fiscal Security to Oaks within 30
days thereafter.
(h) At any time when a Warrant Study shows traffic
signalization improvements at the Intersection are "warranted", but Oaks
{W0935305.10)Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement Page 5 of 10
has not either completed same or delivered to the City the documentation
required under Section 4.7(g), the City may give Oaks notice that if either
such improvements are not completed or the documentation required
under Section 4.7(g) is not delivered to the City within 90 days after the
date of such notice, the City intends to use and/or draw on the Intersection
Signalization Fiscal Security held by the City under Section 4.7(d) or (e)
and use such sums to design and build the applicable traffic signalization
improvements. Upon the City's completion of the applicable traffic
signalization improvements the City will return any unused sums to Oaks.
Article VIII.
8.0 The first sentence of Section 5.1 of the Development Agreement, pertaining to
Annexation, is hereby deleted and replaced with the following:
Section 5.1 Annexation. The City shall have the right, but not the
obligation, to annex the Property or portions thereof prior to the expiration of the
term of this Agreement if construction of all public infrastructure required under
this Agreement and the Offsite Utility Construction and Cost Reimbursement
Agreement for Oaks at San Gabriel Subdivision (as each may be amended from
time to time) has been 90% completed and the West Williamson County
Municipal Utility District No. 1 (the "District") has issued all of the bonds
authorized under the Consent Agreement between Oaks and the City.
Article IX.
9.0 Section 6.5(a) of the Development Agreement, pertaining to Water Service, is
hereby deleted and replaced with the following:
(a) Water services will be provided to the Property by the City.
Article X.
10.0 First Amended Exhibit I of the Development Agreement is hereby deleted.
Article VII of the Development Agreement, pertaining to the Municipal Utility District, is hereby
deleted and replaced with the following:
Municipal UtilityDistrict
The Consent Agreement between Oaks and the City is related to the
creation of the District on the Property. The purpose of the District will be to
issue bonds an amount equivalent to the "Bond Limit Amount", as addressed in
the Consent Agreement, for eligible expenses incurred by Oaks relating to water,
wastewater, drainage and recreational facilities and fees; the creation and
operation costs of the District; an amount equivalent to the City's "Master
Development Fee," as addressed in the Consent Agreement; and interest costs
related to this Project incurred by Oaks.
(W0935305.10)Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement Page 6 of 10
Arfirla X1
11.0 Section 9.7 of the Development Agreement, pertaining to Notice, is hereby
deleted and replaced with the following:
Section 9.7 Notice. All notices, requests or other communications
required or permitted by this Agreement shall be in writing and shall be sent by (i)
by overnight courier or hand delivery, or (ii) certified mail, postage prepaid,
return receipt requested, and addressed to the parties at the following addresses:
City: City of Georgetown
Attn: Assistant City Manager
808 Martin Luther King Jr. St.
Georgetown, Texas 78626
Phone: (512) 930-3652
with copies to: City of Georgetown
City Attorney
P.O. Box 409
Georgetown, Texas 78627
Phone: (512) 930-3652
Oaks: Oaks at San Gabriel, L.L.C.
c/o Hearthstone, Inc.
24151 Ventura Boulevard
Calabasas, California 91302
Attn: Steven C. Porath
Phone: (818) 385-3697
with copies to: Oaks at San Gabriel, L.L.C.
c/o Hearthstone, Inc.
24151 Ventura Boulevard
Calabasas, California 91302
Attn: Todd Rosa
Phone: (949) 954-1923
with copies to: Oaks at San Gabriel, L.L.C.
c/o Harris & Straub, LLC
311 University Drive, Suite 101
Fort Worth, Texas 76107
Attn: James R. Harris
Phone: (817) 332-0027
with copies to: Oaks at San Gabriel, L.L.C.
c/o Harris & Straub, LLC
4408 Spicewood Springs Road
(W0935305.10)Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement Page 7 of 10
Austin, Texas 78759
Attn: Joseph W. Straub
Phone: (512) 231-1555
with copies to: Armbrust & Brown, PLLC
100 Congress Avenue, Suite 1300
Austin, Texas 78701
Attn: Kevin M. Flahive
Phone: (512) 435-2333
Article XII.
12.0 Miscellaneous:
12.1 Except as specifically amended herein, all provisions of the Development
Agreement are hereby acknowledged and ratified by the parties hereto to be in full force and
effect.
12.2 Unless defined differently herein or the context clearly requires otherwise, each
capitalized term used in this Second Amendment shall have the meaning ascribed to such term in
the Development Agreement.
12.3 This Second Amendment may be executed in several counterparts, each of which
shall be deemed an original. The signatures to this Second Amendment may be executed on
separate pages, and when attached to this Second Amendment shall constitute one (1) complete
document.
12.4 The parties agree that this Second Amendment shall be recorded in the Real
Property Records of Williamson County, Texas at the expense of Oaks.
Exhibits to Second Amendment:
Exhibit J — Preliminary Lot Layout
Exhibit K — Architectural and Masonry Standards
Exhibit L — Form of Intersection Signalization Fiscal Security — Letter of Credit
Exhibit M — Form of Intersection Signalization Fiscal Security — Escrow Agreement
[Signature Pages and Acknowledgements Follow]
(W0935305.10)Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement Page 8 of 10
CITY OF GEORGETOWN
Dale Ross, Mayor
ATTEST:
By:,
Robyn Densmore, City Secretary
APPROVED AS TO FORM:
Charlie McNabb, City Attorney
OAKS AT SAN GABRIEL, L.L.C.,
a Texas limited liability company
By: HEARTHSTONE, INC., a California
corporation, d/b/a in Texas as
Hearthstone Advisors, Inc., its Manager
LN
Steven C. Porath, Senior Vice
President & General Counsel
APPROVED AS TO FORM:
By:
Kevin M. Flahive, Attorney for
Oaks at San Gabriel, L.L.C.
[Acknowledgements Follow]
IW0935305.10)Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement Page 9 of 10
THE STATE OF CALIFORNIA §
COUNTY OF LOS ANGELES §
On 2020, before me, a
Notary Public, personally appeared Steven C. Porath who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public [Seal]
STATE OF TEXAS §
§ CORPORATE ACKNOWLEDGEMENT
COUNTY OF WILLIAMSON §
This instrument was acknowledged before me on this day of , 2020, by
Dale Ross, a person known to me, in his capacity as Mayor of the City of Georgetown, Texas, a
Texas home -rule municipal corporation, on behalf of said municipality.
[SEAL] Notary Public, State of Texas
(W0935305.10)Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement Page 10 of 10
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LOCATION MAP
(NOT TO SCALE)
PLATTED/CONSTRUCTED
Phase SFR Lois
Common Area Lots
1A 0
1
1B 79
4
2 62
0
3 20
0
4 0
1
5 85
3
7 52
1
8 70
3
9 65
2
10 80
2
14 79
1
15 85
2
16 4
0
TOTAL 681
20
FUTURE
6 63
1
11 57
TBD
12 40
TBD
13 103
TBD
TOTAL 263
TBD
PROJECT TOTAL
SFR Lots
Common Area Lots
TOTAL 944
21+
BEE,
OAKS AT SAN GABRIEL
101 W. LOUIS BL HENNA VD, SUITE 400
78728
PRELIMINARY LOT LAYOUT Ai79-040STIN, rxww.bg
TEL: 572-878-Q4t)Q • www.6geinc.com
TBPE Registration No. F-1046
"EXHIBIT J"
EXHIBIT K
ARCHITECTURAL AND MASONRY STANDARDS
I. Masonry Requirements, Foundation Shield in . The exterior of each primary dwelling
structure shall be at least sixty percent (60%) masonry construction. In addition to the preceding
requirement, on all single-family lots ("Lots") that abut Vista Heights Drive (whether along the
side or rear of the Lot), the exterior of each primary dwelling structure (both first and second
levels) shall be one hundred percent (100%) masonry construction. Further, each exterior (both
first and second levels) of a primary dwelling structure that faces a public or private right-of-
way, including both exteriors on a corner Lot that face the public or private right-of-way, shall be
of one hundred percent (100%) masonry construction. In the event of any question as to whether
an exterior faces a public or private right-of-way or abuts Vista Heights Drive, the determination
of the homeowners association's architectural review committee or similar authority
("Architectural Reviewer") shall be conclusive. Only brick, stucco and natural stone shall be
considered masonry for purposes of this provision, and although stucco shall be considered
masonry, stucco shall not be used to satisfy more than fifty percent (50%) of the masonry
requirement for any primary dwelling. No masonry with gray color tones other than mortar will
be permitted. The Architectural Reviewer, in the Architectural Reviewer's discretion, may
approve the use of "decorative siding" (fibre -cement or equivalent material only): (i) on up to
twenty percent (20%) of the front elevation of a two (2) story primary dwelling structure; or (ii)
on front gables above plate line on a one (1) story primary dwelling structure. "Decorative
siding" includes vertical board and batten, shakes, scallops and other decorative siding facades
as may be approved by the Architectural Reviewer on a case by case basis in the Architectural
Reviewer's discretion. In no event shall horizontal lap siding be approved as "decorative
siding". All siding material shall be manufactured out of fibre -cement (e.g., Hardi-Plank or
Cemplank) or an equivalent material approved by the Architectural Reviewer.
Exposed portions of the foundation on each front elevation, and side elevation visible
from any street, must be concealed by extending the exterior masonry to within at least twenty-
four inches (24") of the finished grade; provided, however, if the exterior of the elevation
adjacent to the exposed foundation is constructed of stucco, the Architectural Reviewer will have
the authority to require the use of masonry, in a color approved in advance by the Architectural
Reviewer, to conceal the exposed portion of the foundation.
II. Plan and Elevation Repetition. The Architectural Reviewer may, in its sole and absolute
discretion, deny a plan and elevation combination proposed for a particular Lot if a substantially
similar plan and elevation combination exists on a Lot in close proximity to the Lot on which the
plan and elevation combination is proposed. The Architectural Reviewer may adopt additional
requirements concerning substantially similar plans and/or elevations constructed in proximity to
each other.
For Example:
• Plan and elevation combination can be repeated every third Lot (example:
Combination A, Combination B, Combination C, and Combination A).
(W0935305.10) Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement
Exhibit K — Architectural and Masonry Standards Page 1 of 3
_ =A
■ Across the Street: Same plan and elevation combination cannot be placed on a Lot
across the street or diagonal from any other plan and elevation combination
(example above: Combination B).
III. Brick Color and Masonry Stone Repetition. The Architectural Reviewer may, in its sole
and absolute discretion, deny proposed brick or masonry for a particular Lot if substantially
similar brick or masonry exists on a Lot in dose proximity to the Lot on which the brick or
masonry is proposed. The Architectural Reviewer may adopt additional requirements
concerning substantially similar brick or masonry constructed in proximity to each other.
For Example:
• Similar brick or masonry; can be repeated every third Lot (example: Plan A, Plan B,
Plan C, and Plan A).
■ Across the Street: Same brick or masonry cannot be placed on a Lot across the street
or diagonal from any other brick or masonry; (example above: Brick B).
IV. Siting/Setbacks.
The following setbacks shall apply to each Lot other than a corner Lot:
• Front Lot line: 20 feet
Rear Lot line: 10 feet
Side Lot line: 6 feet
The following setbacks shall apply to each comer Lot:
• Front Lot line: 20 feet
• Rear Lot line: 10 feet
• Side Lot line: Side of Lot adjacent to, or facing the street: 15 feet
■ Side Lot line: Side of Lot adjacent to, or facing any other Lot: 6 feet
• Comer lots that share a common side line with a landscape easement on the
street side of the lot are only required to have a 6 foot setback from the
landscape easement.
(W0935305.10) Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement
Exhibit K — Architectural and Masonry Standards
Page 2 of 3
In the event of a dispute as to whether a Lot is considered a corner lot hereunder, the
determination of the Architectural Reviewer shall be final and conclusive.
Notwithstanding any provision to the contrary herein, a covered porch shall be permitted
to extend to a point no closer than ten feet (10') from the rear boundary line of a Lot. The
Architectural Reviewer must approve the encroachment of any flatwork, i.e. driveway, porch,
etc. over the side building setbacks. The Architectural Reviewer reserves the right to stipulate
additional building or Improvement setbacks attributable to any Lot. The Architectural
Reviewer further reserves the right to grant variances to the setbacks set forth herein in
accordance with the terms hereof, as determined in the sole and absolute discretion of the
Architectural Reviewer; provided, however, the Architectural Reviewer shall not a grant a
variance for any Lot that permits the construction of a garage thereon, the front fagade of which
is located less than twenty feet (20') from the front boundary line of such Lot.
(W0935305.10) Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement
Exhibit K — Architectural and Masonry Standards Page 3 of 3
EXHIBIT L
FORM OF INTERSECTION SIGNALIZATION FISCAL SECURITY — LETTER OF CREDIT
Irrevocable Letter of Credit
Issuance Date: Irrevocable Letter of Credit No.
Beneficiary:
City of Georgetown, a Texas home rule municipality
Attn: Assistant City Manager
808 Martin Luther King Jr. St.
Georgetown, Texas 78626
Owner/Applicant:
Oaks at San Gabriel, L.L.C.
c/o Hearthstone, Inc.
24151 Ventura Boulevard
Calabasas, California 91302
Stated Amoun
Issuer:
Name
Address I
Address 2
City, State, Zip Code
Phone
Fax
Expiration Date:,
U.S. DOLLARS
20 at 4:00 P.M. Central Standard Time.
At the request and account of OWNER/APPLICANT, ISSUER hereby opens in favor of
BENEFICIARY our Irrevocable Letter of Credit for the STATED AMOUNT available by
BENEFICIARY'S draft at sight drawn on ISSUER purportedly signed by either
BENEFICIARY'S City Manager or Assistant City Manager. This Letter of Credit authorizes
BENEFICIARY to draw on ISSUER in amounts which in the aggregate shall not exceed the
STATED AMOUNT, which represents the required amount of the traffic signal fiscal security
for the Vista Heights Drive and State Highway 29 Intersection (as described in that certain
"Second Amendment to Development Concerning the Oaks at San Gabriel Subdivision" between
OWNER/APPLICANT and BENEFICIARY dated to be effective on ,
(the "AGREEMENT")) pertaining to design and construction of the Vista Heights Drive
and State Highway 29 Intersection.
(W0935305.10) Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement
Exhibit L - Form of Intersection Signalization Fiscal Security — Letter of Credit Page 1 of 4
Funds under this Irrevocable Letter of Credit shall be made available to the BENEFICIARY on
receipt by the ISSUER of a Sight Draft in the form attached to this Letter of Credit as "Annex
A", accompanied by the original of this Letter of Credit, and a Certificate in the form attached to
this Letter of Credit as "Annex B" dated and signed by a purported authorized representative of
the BENEFICIARY, with such signature acknowledged, stating that the BENEFICIARY is
entitled to draw under this Letter of Credit. No further substantiation of the claim(s) shall be
required.
ISSUER shall be entitled to accept a sight draft and certificate describe above under the terms of
this Letter of Credit from the City Manager or the Assistant City Manager of the
BENEFICIARY, with such signature acknowledged, without any obligation or duty to verify the
authority or identity of the person presenting the sight draft or certificate.
Partial drawings are permitted only per the terms of the AGREEMENT, but not more frequently
than once per month.
Upon receipt of one or more Sight Drafts described above, Issuer shall disburse the funds to the
City of Georgetown, Texas, Attn: Assistant City Manager, 808 Martin Luther King Jr. St.,
Georgetown, Texas 78626 , in the amount stated in the Sight Draft. Such demand(s) will be
honored if presented in person or by facsimile transmission on or before 4:00 o'clock pm Central
Standard Time before the expiration date of this irrevocable letter of credit. If demand is
presented before 10:00 a.m. Central Standard Time, funds must be received before 2:00 p.m.
Central Standard Time the same day. If demand is presented after 10:00 a.m. Central Standard
Time, funds must be received before 2:00 p.m. Central Standard Time the next business day.
Funds may be received by wire transfer.
This Irrevocable Letter of Credit shall be governed by the laws of the State of Texas and venue
for any disputes shall be in Williamson County, Texas.
Issuer shall provide written notification to the City of Georgetown, Texas, Attn: Assistant City
Manager, 808 Martin Luther King Jr. St., Georgetown, Texas 78626, at least forty-five (45)
calendar days prior to the expiration of this Irrevocable Letter of Credit as advice of the pending
expiration.
It is a condition of this Irrevocable Letter of Credit that it shall be deemed automatically
extended without amendment for a period of one (1) year from the present or any future
Expiration Date.
ISSUER:
(Authorized Signature)
By:
Name:
Title:
(W0935305.10) Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement
Exhibit L - Form of Intersection Signalization Fiscal Security — Letter of Credit Page 2 of 4
ANNEX A TO TRAFFIC SIGNAL FISCAL SECURITY
DRAW CERTIFICATE
DATE:
TO:
Issuer:
Name
Address I
Address 2
City, State, Zip Code
Phone
Fax
REF. NO.
FROM:
Beneficiary:
City of Georgetown, a Texas home rule
municipality
Attn: Assistant City Manager
808 Martin Luther King Jr. St.
Georgetown, Texas 78626
AT SIGHT, PAY TO THE ORDER OF THE CITY OF GEORGETOWN, TEXAS,
U.S. DOLLARS ($
) drawn under (name of issuer) Irrevocable
Standby Letter of Credit No. dated
20
BENEFICIARY
STATE OF TEXAS §
COUNTY OF WILLIAMSON §
CITY OF GEORGETOWN, TEXAS
(Authorized Signature)
By:
Name:
Title:
This instrument was acknowledged before me on the
20 by ,
Texas, a home -rule city, on behalf of the City.
(seal)
_ day of ,
of the City of Georgetown,
Notary Public Signature
(W0935305.10) Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement
Exhibit L - Form of Intersection Signalization Fiscal Security — Letter of Credit
Page 3 of 4
ANNEX B TO TRAFFIC SIGNAL FISCAL SECURITY
DRAW CERTIFICATE
DATE:
TO:
Issuer:
Name
Address I
Address 2
City, State, Zip Code
Phone
Fax
Ladies and Gentlemen:
LETTER OF CREDIT. NO.
FROM:
Beneficiary:
City of Georgetown, a Texas home rule
municipality
Attn: Assistant City Manager
808 Martin Luther King Jr. St.
Georgetown, Texas 78626
The undersigned, as authorized representative of Beneficiary herby certifies to you with
reference to Letter of Credit No. that (check applicable):
❑ The Letter of Credit will expire in 45 days and is not being renewed or replaced; or
❑ Owner/Applicant has defaulted on its obligations under the AGREEMENT pertaining to Vista
Heights Drive and State Highway 29 Intersection (described in the AGREEMENT); or
❑ The Completion of the Vista Heights Drive and State Highway 29 Intersection (as described in
the AGREEMENT) has occurred.
STATE OF TEXAS §
COUNTY OF WILLIAMSON §
This instrument was acknowledged before me on the
20_ by ,
Texas, a home -rule city, on behalf of the City.
(seal)
day of ,
of the City of Georgetown,
Notary Public Signature
(W0935305.101 Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement
Exhibit L - Form of Intersection Signalization Fiscal Security — Letter of Credit
Page 4 of 4
Exhibit M
FORM OF INTERSECTION SIGNALIZATION FISCAL SECURITY — ESCROW
AGREEMENT
ESCROW AGREEMENT
[Traffic Signalization, Intersection & Roadway Improvements]
The parties to this Escrow Agreement (this "Agreement"), dated effective as of
, 202_ (the "Effective Date"), are OAKS AT SAN GABRIEL, L.L.C., a Texas
limited liability company ("Oaks"), and THE CITY OF GEORGETOWN, a Texas home -rule
municipal corporation (the "City").
RECITALS:
A. Pursuant to the "Oaks at San Gabriel Traffic Impact Analysis" prepared for the
City by Alliance Transportation Group, Inc., as updated on November 17, 2007 (the "TIA"),
Oaks is obligated to fund the design, permitting and construction of traffic signalization,
intersection and roadway improvements at the intersection of Vista Heights Drive and State
Highway 29 in Williamson County, Texas (the "Improvements"), once the Texas Department of
Transportation ("TxDOT") has determined that the traffic generated by the Oaks at San Gabriel
Subdivision necessitates the construction of such Improvements (i.e., such Improvements are
"warranted").
B. Pursuant to the "Second Amendment to the Development Agreement Concerning
the Oaks at San Gabriel Subdivision" entered into by and between Oaks and the City on
, 2020 and recorded under Document No. in the Official Public
Records of Williamson County, Texas (as it may be further amended from time to time, the
"Second Amendment"), within sixty (60) days after TxDOT has determined that the
Improvements are "warranted", Oaks shall: (i) provide to the City an engineer's cost estimate of
the Improvements approved by TxDOT; and (ii) either (a) deposit fiscal security with the City in
an amount equal to 110% of the amount set out in such cost estimate in the form of either a letter
of credit or cash pursuant to an escrow agreement, or (b) deliver to the City documentation that
(1) TxDOT and Oaks have entered into a contract pursuant to which Oaks will perform or fund
the design and construction of the Improvements, and (2) Oaks has deposited with TxDOT all
funds and/or fiscal security (if any) required under that contract.
C. Pursuant the Warranty Study (as defined in the Second Amendment) dated
effective 202_, TxDOT has determined that the Improvements are now
"warranted".
D. The engineer's cost estimate of the Improvements obtained by Oaks and
approved by TxDOT provides that the estimated cost of the Improvements is $
(the "Initial Estimated Cost").
E. Oaks has elected to deposit cash with the City in an amount equal to 110% of the
Initial Estimated Cost, which is $ (as such amount may be adjusted pursuant
(W0935305.101 Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement
Exhibit M - Form of Intersection Signalization Fiscal Security — Escrow Agreement Pagel of 5
to Paragraph 4 below, the "Cash Security"), to be held in escrow as fiscal security for the
completion of the Improvements in accordance with this Agreement.
AGREEMENTS:
IN CONSIDERATION of the mutual covenants set forth in this Agreement, the parties
agree as follows:
1. Recitals Incorporated. The above Recitals and the Second Amendment, and all
defined terms therein, are incorporated into this Agreement for all purposes.
2. Construction ol'_ lmprovements. Oaks covenants to cause the Improvements to be
designed, permitted and constructed, at Oaks' expense, and to obtain the acceptance of the
Improvements by TxDOT on or before the date that is 1 year after the Effective Date. The plans
and specifications for the Improvements as finally approved by TxDOT are referred to in this
Agreement as the "Approved Construction Plans".
3. Deposit of Cash Security. The Cash Security must be held by the City in an
interest -bearing account in compliance with the City's investment policies. All interest earned
on the Cash Security will be considered a part of the Cash Security.
4. Adjustment of Cash Security. If, upon the date that is 1 year after the Effective
Date, and on or before the anniversary of such date each year thereafter during the term of this
Agreement, Oaks has not yet caused the completion of the Improvements and TxDOT's
acceptance of the Improvements in accordance with this Agreement, Oaks is required under the
Second Amendment to obtain and submit to the City an updated engineer's cost estimate of the
Improvements (each, an "Updated Cost Estimate"). Within 30 days after the City's approval of
each Updated Cost Estimate, the parties shall cause the amount of the Cash Security held in
escrow in accordance with this Agreement to be adjusted to an amount equal to 110% of the
Updated Cost Estimate.
5. Release of Cash Security. The Cash Security will be released to Oaks and this
Agreement will terminate upon the earlier to occur of. (a) Oaks' causing the completion of the
Improvements in accordance with the Approved Construction Plans and satisfaction of all
TxDOT requirements to cause TxDOT's acceptance of the Improvements for ownership,
operation and maintenance, and provision of documentation of same to the City; or (b) Oaks'
delivery to the City of documentation that (i) TxDOT and Oaks have entered into a contract
pursuant to which Oaks will perform or fund the design and construction of the Improvements,
and (ii) Oaks has deposited with TxDOT all funds and/or fiscal security (if any) required under
that contract.
6. City's Use of Cash Security. If at any time during the term of this Agreement,
Oaks has not caused the completion of the Improvements and TxDOT's acceptance of the
Improvements in accordance with this Agreement, the City may give written notice to Oaks of
such failure. If Oaks then fails to cause the completion of the Improvements and TxDOT's
acceptance of the Improvements within 90 days after the date of such notice, the City may draw
upon and use the Cash Security to cause the completion of the Improvements and TxDOT's
(W0935305.10) Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement
Exhibit M - Form of Intersection Signalization Fiscal Security — Escrow Agreement Page 2 of 5
acceptance of the Improvements. Any portion of the Cash Security which is not used by the City
to cause the completion of the Improvements and TxDOT's acceptance of the Improvements,
will be released to Oaks within 30 days after TxDOT's acceptance of the Improvements,
whereupon this Agreement will terminate.
7. Remedies. Should a party hereto fail to perform an obligation hereunder in
accordance with the terms, provisions and conditions of this Agreement ("Failing Party"), then
the other party ("Affected Party") may provide written notice of such failure to the Failing Party
and the Failing Party shall thereupon have 10 days to cure such failure. If such failure has not
been cured after the expiration of such 10-days period, then the Affected Party may elect, within
30 days after the expiration of the 10-day cure period, to (i) institute suit for specific
performance against the Failing Party to compel performance of the obligation, and the costs of
compelling performance (including, without limitation, reasonable attorneys' fees and expenses)
shall be reimbursable to the prevailing Affected Party in such litigation; or (ii) pursue the
recovery of any and all actual (but not speculative, consequential or punitive) damages suffered
by the Affected Party as a result of the Failing Party's breach of its obligations hereunder
(including reasonable attorneys' fees and expenses).
8. Assignability. The benefits and burdens of this Agreement are binding on and
inure to the benefit the City and its successors and assigns, and on the Oaks, its successors and
assigns.
9. Notice. Any notice required or permitted by this Agreement must be in writing
and is deemed delivered when personally delivered or three (3) days after it is deposited with the
U.S. Postal Service, postage prepaid, certified with return receipt requested, and addressed as
follows:
If to Oaks: Oaks at San Gabriel, L.L.C.
c/o Hearthstone, Inc.
24151 Ventura Boulevard
Calabasas, California 91302
Attn: Steven C. Porath
Phone: (818) 385-3697
with copies to: Oaks at San Gabriel, L.L.C.
c/o Hearthstone, Inc.
24151 Ventura Boulevard
Calabasas, California 91302
Attn: Todd Rosa
Phone: (949) 954-1923
Oaks at San Gabriel, L.L.C.
c/o Harris & Straub, LLC
311 University Drive, Suite 101
Fort Worth, Texas 76107
Attn: James R. Harris
Phone: (817) 332-0027
(W0935305.101 Oaks at San Gabriel (Rothe]] Tract)
Second Amendment to Development Agreement
Exhibit M - Form of Intersection Signalization Fiscal Security — Escrow Agreement Page 3 of 5
Oaks at San Gabriel, L.L.C.
c/o Harris & Straub, LLC
4408 Spicewood Springs Road
Austin, Texas 78759
Attn: Joseph W. Straub
Phone: (512) 231-1555
Armbrust & Brown, PLLC
100 Congress Avenue, Suite 1300
Austin, Texas 78701
Attn: Kevin M. Flahive
Phone: (512) 435-2333
If to the City: City of Georgetown
Attn: Assistant City Manager
808 Martin Luther King Jr. St.
Georgetown, Texas 78626
Phone: (512) 930-3652
with copy to: City of Georgetown
City Attorney
P.O. Box 409
Georgetown, Texas 78627
Phone: (512) 930-3652
The parties may, from time to time, change their respective addresses for purposes of
notice listed above. A party's change of address is effective when notice of the change is
provided to the other party in accordance with this Paragraph.
10. Governing Law and Venue. Notwithstanding any conflict of laws provisions, the
parties agree that the terms and provisions of this Agreement will be governed by and construed
in accordance with the laws of the State of Texas and the United States of America from time to
time in effect, and that Williamson County, Texas will be the proper place of venue for any suit
under this Agreement.
11. Amendment. Any oral representations or modifications concerning this
Agreement have no force or effect unless there is a subsequent written modification executed by
duly authorized representatives of both parties.
12. CounteMa_rts. This Agreement may be executed in several counterparts, each of
which shall be deemed an original. The signatures to this Agreement may be executed on
separate pages, and when attached to this Agreement shall constitute one (1) complete document.
[SIGNATURE PAGE FOLLOWS]
(W0935305.101 Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement
Exhibit M - Form of Intersection Signalization Fiscal Security — Escrow Agreement Page 4 of 5
Executed by the parties to be effective as of the Effective Date.
CITY OF GEORGETOWN
By:
Dale Ross, Mayor
ATTEST:
By:
Robyn Densmore, City Secretary
APPROVED AS TO FORM:
By:
Charlie McNabb, City Attorney
OAKS AT SAN GABRIEL, L.L.C.,
a Texas limited liability company
By: HEARTHSTONE, INC., a California
corporation, d/b/a in Texas as
Hearthstone Advisors, Inc., its Manager
Steven C. Porath, Senior Vice
President & General Counsel
APPROVED AS TO FORM:
Kevin M. Flahive, Attorney for
Oaks at San Gabriel, L.L.C.
(W0935305.10} Oaks at San Gabriel (Rothell Tract)
Second Amendment to Development Agreement
Exhibit M - Form of Intersection Signalization Fiscal Security — Escrow Agreement Page 5 of 5