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Capital Improvements Agreement This Agreement is entered into effective February 7, 2011 (the "Effective Date ") by and between the City of San Marcos, a Texas municipal corporation (the "City "), Hays County, Texas, a Political subdivision of the State of Texas (the "County ") and Cottonwood Creek JDR, Ltd., a Texas Limited Partnership (the "Developer "). A. RECITALS 1. The Developer is constructing certain road improvements to serve the Cottonwood Creek Subdivision (the "Development ") in the area of Rattler Road and State Highway 123 in San Marcos, Hays County, Texas. The City and County have determined that there is a public need to construct public road improvements according to specifications beyond what is required for the Development and, therefore, wish to contract with the Developer to construct those public improvements requested by the City and the County and to participate in the costs for such improvements. The road improvements for the development and the additional improvements requested by the City and the County are, collectively, the "Improvements "). 2. This Agreement sets forth the terms and conditions under which the Parties will jointly participate in designing, funding and constructing the Improvements. B. AGREEMENT The Parties, in consideration of the mutual promises, covenants and agreements set forth in this Agreement, agree as follows: 1. Right -of Way Acquisition. The City agrees to acquire all public right -of -way as shown in Exhibit "A" necessary for that portion of the Improvements beyond what is required by the Developer for its Development, as shown in Exhibit "A." The costs for acquisition of the additional right -of -way shall be subject to approval of the Parties. The final right -of -way boundaries shall be subject to adjustment according to negotiations with landowners and based upon final surveys of the right -of way determined by the City to be acceptable for its purposes. The City will pursue acquisition of such public right-of-way with reasonable diligence. 2. Design and Construction of Improvements. The Developer agrees to design and construct the Improvements in the approximate locations shown in Exhibit "A ", attached hereto and made a part hereof. The Improvements shall be designed and built according to the preliminary specifications shown in Exhibit `B" and the estimated costs approved by the Parties. The final plans and specifications for construction will be subject to approval of the Parties. 3. Project Management; Oversight by Engineer. The Developer will act as project manager in the design and construction of the Improvements. The Developer will ensure that the design and construction is carried out under the direct supervision of a professional engineer registered in the State of Texas. 4. Construction Contract. The Developer shall award all contracts for the construction of the Improvements, except as otherwise provided in paragraph 16. The contract for the construction of the Improvements awarded by the developer is subject to the approval of the