R-10-07-22-10D1 - 7/22/2010RESOLUTION NO. R -10-07-22-10D1
WHEREAS, the City of Round Rock has previously entered into a Consent Agreement with
Double J Investments, L.P., now RSP Partners Development, L.P., ("Developer") regarding the
creation of two Municipal Utility Districts named Williamson County Municipal Utility District Nos.
19 and 20, now named Siena Municipal Utility District No. 1 and Siena Municipal Utility District No.
2, and
WHEREAS, by Resolution No. R -06-10-12-11E1, the City approved an Amended and
Restated Consent Agreement with Developer, and
WHEREAS, by Resolution No. R -08-12-18-7G1, the City approved the First Amendment to
the Amended and Restated Consent Agreement with Developer to extend the deadline and to modify
certain terms and conditions, and
WHEREAS, the City Council now wishes to approve the Second Amendment to the aforesaid
Agreement to provide that the City's reimbursement will be made in progress payments during the
construction of the McNutt Interceptor, 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 the Second
Amendment to the Amended and Restated Consent Agreement with RSP Partners Development, 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 upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
0:\wdox\SCC1nts\0112\1005\MUNICIPAL\00197338.DOC/rmc
RESOLVED this 22nd day of July, 2010.
0 », /t
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
SARA L. WHITE, City Secretary
SECOND AMENDMENT
TO
AMENDED AND RESTATED CONSENT AGREEMENT
AMONG
CITY OF ROUND ROCK, TEXAS,
RSP PARTNERS DEVELOPMENT, L.P.
(FORMERLY DOUBLE J INVESTMENTS, L.P.)
SIENA MUNICIPAL UTILITY DISTRICT NO. 1
AND
SIENA MUNICIPAL UTILITY DISTRICT NO. 2
(FORMERLY WILLIAMSON COUNTY MUNICIPAL UTILITY DISTRICT
NOS. 19 AND 20)
EXHIBIT
"A„
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
This Second Amendment to the Amended and Restated Consent Agreement ("Second
Amendment") is entered into among the City of Round Rock, Texas, a home rule city located in
Williamson County, Texas ("City"), RSP Partners Development, L.P. ("Developer"), Siena
Municipal Utility District No. 1 ("District No. 1")and Siena Municipal Utility District No. 2,
("District No. 2"), or ("Districts") as appropriate.
RECITALS
WHEREAS, the City and the Developer entered into the Amended and Restated Consent
Agreement ("Consent Agreement") as of October 18, 2006, and the Districts either have or soon
will join in the Consent Agreement; and
WHEREAS, the City and the Developer entered into the First Amendment to the
Amended and Restated Consent Agreement as of December 18, 2008, and the Districts either
have or soon will join in the First Amendment upon organization of their respective boards of
directors; and
WHEREAS, the Consent Agreement provided, among other things, that the Developer
would construct Lines D-1, D-2 and D-4 of the McNutt Interceptor, ( the "Project") which lines
would be oversized to give the City additional capacity for future customers; and
WHEREAS, the Consent Agreement also provided that the City would reimburse the
Developer for the oversizing of the Project when the Project was completed; and
WHEREAS, parties hereto wish to amend the Consent Agreement to provide that the
reimbursement will be made in progress payments during the construction of the Project;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree to amend the Consent Agreement as follows:
Article I
Amendment of Section 2.02
Section 2.02. Line A. is amended to add Subsection (j) Credit for Certain Line A Costs included
in Impact Fee, which shall read as follows:
(j) Credit for Certain Line A Costs Included in Impact Fee. Certain costs of Line A
of the McNutt Interceptor are included in the City's wastewater impact fee, resulting in a potential
overpayment by the Developer of $113.50 per LUE based on its cost participation in Line A under this
Consent Agreement. Therefore, within 30 days after the end of each future fiscal year (October 1 though
September 30), the City will refund the Developer $113.50 for each additional impact fee paid for a new
wastewater connection within the Districts during that fiscal year until such time as the Developer has
received $113.50 for each wastewater connection within the Districts through build -out.
Article II
Amendment of Section 2.04(f)
Section 2.04. Line D, Subsection (f) Progress Payments by City shall be amended to read as
follows:
(f) Progress Payments by City. The City agrees to pay its share of the
costs of Line D, based on the incremental cost determined under Subsection (c)
above, which payment will constitute a "contractual obligation" under Section
8.503(4) of the Round Rock City Code, as follows:
Upon 25% completion: 25%
Upon 75% completion 25%
Upon substantial completion 25%
Upon acceptance of Line D by the City 25%
Article III
Defined Terms
All terms delineated with initial capital letters in this Second Amendment that are defined
in the Consent Agreement have the same meanings in this Second Amendment. Other terms
have the meanings commonly ascribed to them.
Article IV
Effect of Amendment
Except as specifically provided in this Second Amendment, the terms of the Consent
Agreement and the First Amendment continue to govern the rights and obligations of the parties,
2
and all terms of the Consent Agreement and the First Amendment remain in full force and effect.
If there is any conflict or inconsistency between this Second Amendment and the Consent
Agreement and/or the First Amendment, this Second Amendment will control and modify the
Consent Agreement and the First Amendment.
Article V
Execution; Counterparts
To facilitate execution, this Second Amendment may be executed in any number of
counterparts, and it will not be necessary that the signatures of all parties by contained on any
one counterpart. Additionally, for purposes of facilitating the execution of this Second
Amendment: (a) the signature pages taken from separate, individually executed counterparts of
this Second Amendment may be combined to form multiple fully executed counterparts; and (b)
a facsimile signature will be deemed to be an original signature for all purposes. All executed
counterparts of this Second Amendment will be deemed to be originals, but such counterparts,
when taken together, will constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned parties have executed this Second
Amendment on the dates indicated below.
CITY OF ROUND ROCK
By:
Alan McGraw, Mayor
Date: day of , 2010
Acknowledgement
This instrument was acknowledge before me this day of , 2010 by Alan McGraw,
Mayor of the City of Round Rock, on behalf of said municipality.
3
Notary Public, State of Texas
Printed Name
My Commission Expires:
RSP PARTNERS DEVELOPMENT, L.P.
By:
John S. Lloyd, Director
Date: day of , 2010
Acknowledgement
This instrument was acknowledge before me this day of , 2010 by John S. Lloyd,
Director of RSP Partners Development, L.P. on behalf of said entity.
4
Notary Public, State of Texas
Printed Name
My Commission Expires:
Attest:
Daniel McFall, Secretary
SIENA MUNICIPAL UTILITY DISTRICT NO. 1
By:
James R. Cone, President
Date: day of , 2010
Acknowledgement
This instrument was acknowledge before me this day of , 2010 by James R.
Cone, President of the Siena Municipal Utility District No. 1, on behalf of said district.
Notary Public, State of Texas
Printed Name
My Commission Expires:
5
Attest:
Jeremy Adam Kruger, Secretary
SIENA MUNICIPAL UTILITY DISTRICT NO. 2
By:
Jeff P. O'Jibway, President
Date: day of , 2010
Acknowledgement
This instrument was acknowledge before me this day of , 2010 by Jeff P.
O'Jibway, President of the Siena Municipal Utility District No. 2, on behalf of said district.
Notary Public, State of Texas
Printed Name
My Commission Expires:
6
ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY
Agenda Item No. 10D1.
City Council Agenda Summary Sheet
Agenda Caption:
Consider a resolution authorizing the Mayor to execute the Second Amendment to the
Amended and Restated Consent Agreement with RSP Partners Development, L.P. for the
creation of Siena Municipal Utility Districts 1 and 2.
Meeting Date: July 22, 2010
Department: Infrastructure Development and Construction Management
Staff Person making presentation: Michael Thane, P.E.
Director of Infrastructure Management
Item Summary:
Siena Municipal Utility District (MUD) Nos. 1 and 2 are located in the eastern portion of the City of Round Rock ETJ.
The Developer has requested this second amendment to the Siena MUD Consent Agreement which revises the
incremental payments by the City to the Developer for the City's portion of the cost for constructing the wastewater
interceptor through the MUD property. The City agrees to pay their share of the cost of the wastewater interceptor
based on the following incremental payments:
• Upon 25% completion of construction
• Upon 75% completion of construction
• Upon substantial completion of construction
• Upon acceptance of the wastewater interceptor by the City
The original consent agreement stated that the City would reimburse the developer for the City's total portion of the
wastewater interceptor cost at the completion of the project.
In addition, this amendment provides for a credit to the developer for overpayment of the construction cost of Line
A of the McNutt Creek interceptor. Certain costs of the interceptor were included in the wastewater impact fee.
Strategic Plan Relevance:
Goal 27.0 "Ensure there is an adequate, affordable and safe water supply."
Cost: N/A
Source of Funds: N/A
Date of Public Hearing (if required): N/A
Recommended Action: Approval of Resolution
EXECUTED
DOCUMENT
FOLLOWS
SECOND AMENDMENT
TO
AMENDED AND RESTATED CONSENT AGREEMENT
AMONG
CITY OF ROUND ROCK, TEXAS,
RSP PARTNERS DEVELOPMENT, L.P.
(FORMERLY DOUBLE J INVESTMENTS, L.P.)
SIENA MUNICIPAL UTILITY DISTRICT NO. 1
AND
SIENA MUNICIPAL UTILITY DISTRICT NO. 2
(FORMERLY WILLIAMSON COUNTY MUNICIPAL UTILITY DISTRICT
NOS. 19 AND 20)
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
This Second Amendment to the Amended and Restated Consent Agreement ("Second
Amendment") is entered into among the City of Round Rock, Texas, a home rule city located in
Williamson County, Texas ("City"), RSP Partners Development, L.P. ("Developer"), Siena
Municipal Utility District No. 1 ("District No. 1 ")and Siena Municipal Utility District No. 2,
("District No. 2"), or ("Districts") as appropriate.
RECITALS
WHEREAS, the City and the Developer entered into the Amended and Restated Consent
Agreement ("Consent Agreement") as of October 18, 2006, and the Districts either have or soon
will join in the Consent Agreement; and
WHEREAS, the City and the Developer entered into the First Amendment to the
Amended and Restated Consent Agreement as of December 18, 2008, and the Districts either
have or soon will join in the First Amendment upon organization of their respective boards of
directors; and
WHEREAS, the Consent Agreement provided, among other things, that the Developer
would construct Lines D-1, D-2 and D-4 of the McNutt Interceptor, ( the "Project") which lines
would be oversized to give the City additional capacity for future customers; and
WHEREAS, the Consent Agreement also provided that the City would reimburse the
Developer for the oversizing of the Project when the Project was completed; and
WHEREAS, parties hereto wish to amend the Consent Agreement to provide that the
reimbursement will be made in progress payments during the construction of the Project;
R- vq - 22- tdt�l
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree to amend the Consent Agreement as follows:
Article I
Amendment of Section 2.02
Section 2.02. Line A. is amended to add Subsection (j) Credit for Certain Line A Costs included
in Impact Fee, which shall read as follows:
(j) Credit for Certain Line A Costs Included in Impact Fee. Certain costs of Line A
of the McNutt Interceptor are included in the City's wastewater impact fee, resulting in a potential
overpayment by the Developer of $113.50 per LUE based on its cost participation in Line A under this
Consent Agreement. Therefore, within 30 days after the end of each future fiscal year (October 1 though
September 30), the City will refund the Developer $113.50 for each additional impact fee paid for a new
wastewater connection within the Districts during that fiscal year until such time as the Developer has
received $113.50 for each wastewater connection within the Districts through build -out.
Article II
Amendment of Section 2.04(f)
Section 2.04. Line D, Subsection (f) Progress Payments by City shall be amended to read as
follows:
(f) Progress Payments by City. The City agrees to pay its share of the
costs of Line D, based on the incremental cost determined under Subsection (c)
above, which payment will constitute a "contractual obligation" under Section
8.503(4) of the Round Rock City Code, as follows:
Upon 25% completion: 25%
Upon 75% completion 25%
Upon substantial completion 25%
Upon acceptance of Line D by the City 25%
Article III
Defined Terms
All terms delineated with initial capital letters in this Second Amendment that are defined
in the Consent Agreement have the same meanings in this Second Amendment. Other terms
have the meanings commonly ascribed to them.
Article IV
Effect of Amendment
Except as specifically provided in this Second Amendment, the terms of the Consent
Agreement and the First Amendment continue to govern the rights and obligations of the parties,
2
and all terms of the Consent Agreement and the First Amendment remain in full force and effect.
If there is any conflict or inconsistency between this Second Amendment and the Consent
Agreement and/or the First Amendment, this Second Amendment will control and modify the
Consent Agreement and the First Amendment.
Article V
Execution; Counterparts
To facilitate execution, this Second Amendment may be executed in any number of
counterparts, and it will not be necessary that the signatures of all parties by contained on any
one counterpart. Additionally, for purposes of facilitating the execution of this Second
Amendment: (a) the signature pages taken from separate, individually executed counterparts of
this Second Amendment may be combined to form multiple fully executed counterparts; and (b)
a facsimile signature will be deemed to be an original signature for all purposes. All executed
counterparts of this Second Amendment will be deemed to be originals, but such counterparts,
when taken together, will constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned parties have executed this Second
Amendment on the dates indicated below.
CITY OF RQIJND ROCK,
A____________
By:
Alan McGraw, Mayor
Date: `2 day of , 2010
Acknowledgement
This instrument was acknowledge before me this dayof
gAr. Al
Mayor of the City of Round Rock, on behalf of said municipality.
SARA L. WHITE
MY COMMISSION EXPIRES
July 11, 2012
3
, 2010 by Alan McGraw,
Notary Public, State of Texas
L.. WI -IV&
Printed Name
My Commission Expires: 31 kief 11,
RSP PARTN1fi,RS D VE OP ► EN
By:
John . Lloyd, Director
Date: 22_ day of 4/4 fr, 2010
Acknowledgement
This instrument was acknowledge before me this 7-' day of .,J fv , 2010 by John S. Lloyd,
Director of RSP Partners Development, L.P. on behalf of said entity!
SHARLENE N. COLLINS
Notary Public, State of Texas
My Commission Expires
EBRUTARY 24, 2012
4
Printed Name
My Commission Expires:
Attest:
Daniel McFall, Secretary
SIENA
By:
ICIP A LUT
Doug 1. Kuenstl r, ice President
Date 21ay of �% fy , 2010
Y 1 ISTRICT NO. 1
Acknowledgement
This instrument was acknowledge before me this 2 Z-- day of J u f L/_, 2010 by Douglas
Kuenstler, Vice President of the Siena Municipal Utility District No. 1, on/behalf of said district.
SHARLENE N. COLLINS
Notary Public. State of Texas
My Commission Expires
FEBRUARY 24, 2012 ; My Commission Expires:
""4411 r:
N : ary ' ublic, State of Texas
Printed Name
393210-1 07/08/2010
5
Attest:
f
Jeremy Adam Kruger, Se etary
SIENA MUNICIPAL UTILITY DISTRICT NO. 2
By:
Jeff P. O'Jibway, President
Date: 22_ day of J �� , 2010
Acknowledgement
This instrument was acknowledge before me this ,�� day of , 2010 by Jeff P.
O'Jibway, President of the Siena Municipal Utility District No. 2, on beha of said district.
•
SHARLENE N. COLLINS
Notary Public, State of Texas
My Commission Expires
FEBRUARY 24, 2012
6
lic, State of Texas
Printed Name
My Commission Expires: