2018-5405 - 4/26/2018 RESOLUTION NO. 2018-5405
WHEREAS, the Round Rock Transportation and Economic Development Corporation
("TEDCO"), the City of Round Rock ("City"), and KR Acquisitions, LLC ("Kalahari"), (collectively,
the "Parties") entered into a Master Development Agreement dated December 15, 2016, whereby the
Parties contemplated the development of the Kalahari Resort and Indoor Water Park and Convention
Center("Convention Center"), and certain infrastructure related thereto (all collectively, the "Project");
and
WHEREAS, TEDCO and the City determined as part of the Master Development Agreement
that it is in the best interest of the public to construct certain onsite public infrastructure, as defined and
described in the Master Development Agreement, and as described specifically therein, ("Onsite Public
Improvements") in conjunction with the Project; and
WHEREAS, Kalahari is willing to advance the funds for the design, testing, and construction
of the Onsite Public Improvements, subject to the reimbursement by TEDCO, and TEDCO is willing
to pay Kalahari for such design, testing, and construction of the Onsite Public Improvements, all as
described therein; and
WHEREAS, in order to evidence the Parties' agreement, Kalahari, City, and TEDCO are
entering into an Agreement to articulate and memorialize certain covenants and agreements regarding
the construction that will serve and benefit the Project, including but not limited to public access to the
Convention Center; and
WHEREAS, TEDCO desires to enter into an Onsite Public Improvement Agreement with the
City and Kalahari, Now Therefore
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE ROUND ROCK
TRANSPORTATION AND ECONOMIC DEVELOPMENT CORPORATION,
0112.1804;00399457
That the President is hereby authorized and directed to execute on behalf of the Round Rock
Transportation and Economic Development Corporation an Onsite Public Improvement Agreement
with the City of Round Rock and KR Acquisitions, LLC, a copy of same being attached hereto as
Exhibit"A" and incorporated herein for all purposes.
The Board of Directors 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 April, 2018.
By: Ze .000
-44
WILL PECKHAM, Vice President
Round Rock Transportation and Economic
Development Corporation
ATTEST:
r
JON SLOAN, Secretary
2
EXHIBIT
',A„
ONSITE PUBLIC IMPROVEMENT AGREEMENT
This ONSITE PUBLIC IMPROVEMENT AGREEMENT (this "Agreement") is made
and entered into as of the day of , 2018 (the "Effective Date"), by and among KR
Acquisitions, LLC, a Delaware limited liability company (hereinafter referred to as "Kalahari"),
the Round Rock Transportation and Economic Development Corporation, a Type-13 corporation
established pursuant to the authority of Chapter 501 of the Texas Local Government Code
(hereinafter referred to as "TEDCO"), and the City of Round Rock, Texas, a Texas home rule
municipality (hereinafter referred to as the "City), (and collectively, the "Parties"), upon the
terms and conditions set forth herein.
WHEREAS, the City is the owner of certain real property located in Williamson
County, Round Rock, Texas;
WHEREAS, Kalahari, an affiliate of Kalahari, the City, and TEDCO entered into a
Master Development Agreement dated December 15, 2016, whereby the Parties contemplated
the development of the Kalahari Resort and Indoor Water Park and Convention Center
("Convention Center"), and certain infrastructure related thereto (all collectively, the "Project");
WHEREAS, the City and TEDCO determined as part of the Master Development
Agreement that it is in the best interest of the public to construct certain onsite public
infrastructure, as defined and described in the Master Development Agreement, and as described
specifically herein, ("Onsite Public Improvements") in conjunction with the Project;
WHEREAS, construction of the Onsite Public Improvements has not yet begun, and in
order to evidence compliance with Texas Comptroller Rule 3.291(d), the Parties agree to the
terms of this Agreement.
WHEREAS, Kalahari is willing to advance the funds for the design, testing, and
construction of the Onsite Public Improvements, subject to the reimbursement by TEDCO, and
TEDCO is willing to pay Kalahari for such design, testing, and construction of the Onsite Public
Improvements, all as described herein;
WHEREAS, in order to evidence the Parties' agreement, Kalahari, City, and TEDCO are
entering into this Agreement to articulate and memorialize certain covenants and agreements
regarding the construction that will serve and benefit the Project, including but not limited to
public access to the Convention Center,
NOW, THEREFORE, for and in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
1. Onsite Public Improvements. The Onsite Public Improvements are more
particularly defined in §§ 2.01 and 6.02(a) of the Master Development and as generally set forth
in Exhibit "A" which is attached hereto and fully incorporated herein by reference. Kalahari
shall cause the Onsite Public Improvements to be constructed in accordance with applicable law,
including building codes, ordinances, and regulations applicable to the work("Applicable Law"),
and the plans and specifications ("Plans") as designed by registered engineer, Halff and
Associates, Inc. ("Engineer") as such Plans are approved by the City, the County, and/or any
other applicable authority having jurisdiction therefor. Without limiting the generality of the
foregoing, Applicable Law includes Chapter 36 of the Round Rock Code of Ordinances and the
Design and Construction Standards adopted by the City.
2. Permitting. Kalahari will obtain all necessary permits and approvals from
governmental entities having jurisdiction over the Onsite Public Improvements. TEDCO and the
City agree to use reasonable efforts to assist Kalahari in obtaining such permits and approvals.
3. Construction of Onsite Public Improvements. During construction, the City shall
have the right to review all documents, maps, plats and records, photographs, reports, and
drawings affecting the construction and to inspect the work in progress, provided that in
conducting such inspections, the City shall not interfere with the progress of the work, except as
necessary to ensure that the Applicable Law is complied with. In accordance with Applicable
Law, the City shall inspect the Onsite Public Improvements, and any deficiencies noted by City
shall be brought to the attention of Kalahari and corrected prior to final acceptance of the work
by the City.
4. Kalahari to Complete Work. Once Kalahari causes construction of the work to
commence, Kalahari shall continue to diligently prosecute the construction of and Complete (as
hereinafter defined) all of the work at Kalahari's cost in a commercially reasonable timeframe.
For purposes of this Agreement, the work shall be deemed to be "Complete" or "Completed"
when (a) Kalahari has delivered to TEDCO and City written certification from the Engineer that
the work has been constructed substantially in accordance with the Plans, (b) Kalahari has
delivered to TEDCO written evidence issued by the City and/or County that the Onsite Public
Improvements have been accepted by the appropriate agency of the City and/or County as
applicable, and (c) Kalahari has received and recorded and delivered to TEDCO a copy of a final
unconditional lien waiver executed by the contractor and subcontractors or a copy of the
contractor's payment bond and consent of surety to final payment, reflecting that all work has
been performed.
5. Contribution by TEDCO. Upon Completion of the Onsite Public Improvements
in accordance with the requirements set forth herein, TEDCO will thereafter become obligated to
pay to Kalahari the sum of Fifteen Million Dollars ($15,000,000.00) (the "Onsite Improvement
Contribution"). The Onsite Improvement Contribution will be paid by TEDCO within thirty (30)
days following such Completion.
6. Dedication and Conditional Acceptance of Onsite Public Improvements. The
City owns the real estate upon which the Onsite Public Improvements shall be constructed.
Kalahari hereby dedicates the Onsite Public Improvements, which are not yet under construction,
to the City, and subject to Kalahari's compliance with Agreement, the City conditionally accepts
such improvements subject to the terms of this Agreement.
7. Sales Tax Compliance. Kalahari and its contractors and subcontractors shall
claim any applicable Texas state and local sales tax exemptions applicable to the construction of
the Onsite Public Improvements.
2
8. Warranty. Kalahari shall provide the warranty and maintenance as required by
§36.208 of the Round Rock Code of Ordinances, as amended.
9. Notices. All notices required hereunder shall be in writing and served by a
professional delivery service, overnight courier service or certified mail, return receipt requested,
postage prepaid at the addresses set forth below (provided that any party hereto shall have the
right to change such address by written notice to the other parties) and such notice(s) shall be
deemed received when it is deposited with such service or the United States Postal Service (as
applicable):
Kalahari's Address: KR Acquisitions, LLC
P.O. Box 590
1305 Kalahari Drive
Wisconsin Dells, WI 53965
Attn: Ralph Gundrum
With a copy to: Sara McEown
Jackson Walker, LLP
1401 McKinney St. Suite 1900
Houston, TX 77010
TEDCO's Address: 221 E. Main Street
Round Rock, TX 78664
Attn: Laurie Hadley
With a copy to: Sheets & Crossfield
309 Main Street
Round Rock, TX 78664
Attn: Stephan L. Sheets
City's Address: 221 E. Main Street
Round Rock, TX 78664
Attn: Laurie Hadley
With a copy to: Sheets & Crossfield
309 Main Street
Round Rock, TX 78664
Attn: Stephan L. Sheets
10. Severability. If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any applicable law, then such provision will be deemed to be modified to
the extent necessary to render it legal, valid and enforceable, and if no such modification will
render it legal, valid and enforceable, then this Agreement will be construed as if not containing
the provision held to be invalid, and the rights and obligations of the Parties will be construed
and enforced accordingly.
3
11. Binding Effect. This Agreement and the terms, covenants and conditions herein
contained shall inure to the benefit of and be binding upon the successors and assigns of any of
the Parties hereto.
12. Entire Agreement. This Agreement, together with the exhibits referenced herein,
contains the entire understanding between the Parties with respect to the subject matter of this
Agreement, and there are no other agreements, oral or written, between the Parties regarding the
subject matter of this Agreement. All of the exhibits attached to this Agreement are incorporated
herein, and made a part of, this Agreement. This Agreement can be amended or terminated only
by written agreement signed by the Parties hereto.
13. No Partnership or Agency. This Agreement is not intended, and nothing herein
shall be construed, to make the Parties partners, co-tenants or joint venturers with each other,
unless otherwise expressly provided for herein.
14. Attorneys' Fees. If any party defaults in the performance of its obligations
hereunder, the non-defaulting party shall be entitled to recover from the defaulting party its
reasonable attorneys' fees, expenses and costs of court in enforcing the obligations of the
defaulting party, in accordance with Section 271.153 of the Texas Local Government Code.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, and venue shall be in Williamson County.
16. Counterparts. This Agreement may be executed in multiple counterparts, the
legal affect of which will be the same as if all Parties hereto had signed a single instrument.
DATED AND EFFECTIVE as of the Effective Date first written above.
4
KR ACQUISITIONS, LLC
B 7-��111-w� "'
Y�
Todd Nelson,President
ROUND ROCK TRANSPORTATION AND ECONOMIC
DEVELOPMENT CORPORATION
By:
Craig Morgan,President
APPROVED as to form:
Stephan L. Sheets,Corporation Attorney
CITY OF ROUND ROCK
By:r
Craig Morgan, Mayor
APPROVED as to form:
Stephan L. Sheets, Corporation Attorney
[Signature Page to Onsite Public Improvement Agreement]
ACKNOWLEDGEMENT
STATE OF §
COUNTY OF §
This instrument was acknowledged before me on the day of , 2018, by
Todd Nelson, the President of KR CC, Inc., a Delaware corporation, on behalf of said
corporation.
[SEAL]
Notary Public—State of
My Commission Expires:
Printed Name of Notary
Acknowledgement to Onsite Public Improvement Agreement
ACKNOWLEDGEMENT
STATE OF TEXAS §
COUNTY OF WILLIAMSON §
This instrument was acknowledged before me on the day of , 2018, by
Craig Morgan, the Mayor of the City of Round Rock, Texas, a municipal corporation of the State
of Texas and a home rule city located in Williamson County, Texas, on behalf of said municipal
corporation and home rule city.
[SEAL]
Notary Public—State of Texas
My Commission Expires:
Printed Name of Notary
ACKNOWLEDGEMENT
STATE OF TEXAS §
COUNTY OF WILLIAMSON §
This instrument was acknowledged before me on the day of , 2018, by
Craig Morgan, the President of the Round Rock Transportation and Economic Development
Corporation, a Type-B corporation established pursuant to the authority of Chapter 501 of the
Texas Local Government Code, on behalf of said Type-B corporation.
[SEAL]
Notary Public—State of Texas
My Commission Expires:
Printed Name of Notary
Acknowledgement to Onsite Public Improvement Agreement
MORTGAGEE CONSENT
[SEE ATTACHED]
Mortgagee Consent to Onsite Public Improvement Agreement
EXHIBIT A
General Depiction of Onsite Improvements
[SEE ATTACHED]
Exhibit A to Onsite Public Improvement Agreement
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Exhibit A to Onsite Public Improvement Agreement
ONSITE PUBLIC IMPROVEMENT AGREEMENT
This ONSITE PUBLIC IMPRgVEMENT AGREEMENT(this"Agreement') is made
and entered into as of the day of J"L, 2018 (the "Effective Date"), by and among KR
Acquisitions, LLC, a Deleware limited li bility company (hereinafter referred to as "Kalahari"),
the Round Rock Transportation and Economic Development Corporation, a Type-B corporation
established pursuant to the authority of Chapter 501 of the Texas Local Government Code
(hereinafter referred to as "TEDCO"), and the City of Round Rock, Texas, a Texas home rule
municipality (hereinafter referred to as the "City), (and collectively, the "Parties"), upon the
terms and conditions set forth herein.
WHEREAS, the City is the owner of certain real property located in Williamson
County,Round Rock,Texas;
WHEREAS, Kalahari, an affiliate of Kalahari, the City, and TEDCO entered into a
Master Development Agreement dated December 15, 2016, whereby the Parties contemplated
the development of the Kalahari Resort and Indoor Water Park and Convention Center
("Convention Center"),and certain infrastructure related thereto(all collectively,the"Project');
WHEREAS, the City and TEDCO determined as part of the Master Development
Agreement that it is in the best interest of the public to construct certain onsite public
infrastructure, as defined and described in the Master Development Agreement, and as described
specifically herein, ("Onsite Public Improvements") in conjunction with the Project;
WHEREAS, Kalahari is willing to advance the funds for the design, testing, and
construction of the Onsite Public Improvements, subject to the reimbursement by TEDCO, and
TEDCO is willing to pay Kalahari for such design,testing, and construction of the Onsite Public
Improvements, all as described herein;
WHEREAS,in order to evidence the Parties' agreement,Kalahari,City,and TEDCO are
entering into this Agreement to articulate and memorialize certain covenants and agreements
regarding the construction that will serve and benefit the Project, including but not limited to
public access to the Convention Center,
NOW, THEREFORE, for and in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
1. Onsite Public Improvements. The Onsite Public Improvements are more
particularly defined in §§ 2.01 and 6.02(a) of the Master Development and as generally set forth
in Exhibit "A" which is attached hereto and fully incorporated herein by reference. Kalahari
shall cause the Onsite Public Improvements to be constructed in accordance with applicable law,
including building codes, ordinanances, and regulations applicable to the work ("Applicable
Law'), and the plans and specifications ("Plans") as designed by registered engineer, Halff and
Associates, Inc. ("Engineer") as such Plans are approved by the City, the County, and/or any
other applicable authority having jurisdiction therefor. Without limiting the generality of the
R-2Dlp�-5a , 201$ -c4*)
foregoing, Applicable Law includes Chapter 36 of the Round Rock Code of Ordinances and the
Design and Construction Standards adopted by the City.
2. Permittine. Kalahari will obtain all necessary permits and approvals from
governmental entities having jurisdiction over the Onsite Public Improvements. TEDCO and the
City agree to use reasonable efforts to assist Kalahari in obtaining such permits and approvals.
3. Construction of Onsite Public Improvements. During construction,the City shall
have the right to review all documents, maps, plats and records, photographs, reports, and
drawings affecting the construction and to inspect the work in progress, provided that in
conducting such inspections,the City shall not interefere with the progress of the work, except as
necessary to ensure that the Applicable Law is complied with. In accordance with Applicable
Law, the City shall inspect the Onsite Public Improvments, and any deficiencies noted by City
shall be brought to the attention of Kalahari and corrected prior to final acceptance of the work
by the City.
4. Kalahari to Complete Work. Once Kalahari causes construction of the work to
commence, Kalahari shall continue to diligently prosecute the construction of and Complete (as
hereinafter defined) all of the work at Kalahari's cost in a commercially reasonable timeframe.
For purposes of this Agreement, the work shall be deemed to be "Complete' or "Completed"
when (a) Kalahari has delivered to TEDCO and City written certification from the Engineer that
the work has been constructed substantially in accordance with the Plans, (b) Kalahari has
delivered to TEDCO written evidence issued by the City and/or County that the Onsite Public
Improvments have been accepted by the appropriate agency of the City and/or County as
applicable, and (c)Kalahari has received and recorded and delivered to TEDCO a copy of a final
unconditional lien waiver executed by the contractor and subcontractors or a copy of the
contractor's payment bond and consent of surety to final payment, reflecting that all work has
been performed.
5. Contribution by TEDCO. Upon Completion of the Onsite Public Improvements
in accordance with the requirements set forth herein,TEDCO will thereafter become obligated to
pay to Kalahari the sum of Fifteen Million Dollars ($15,000,000.00) (the "Onsite Improvement
Contribution"). The Onsite Improvement Contribution will be paid by TEDCO within thirty (30)
days following such Completion.
6. Warranty. Kalahari shall provide the warranty and maintenance as required by
§36.208 of the Round Rock Code of Ordinances, as amended.
7. Notices. All notices required hereunder shall be in writing and served by a
professional delivery service, overnight courier service or certified mail,return receipt requested,
postage prepaid at the addresses set forth below (provided that any party hereto shall have the
right to change such address by written notice to the other parties) and such notice(s) shall be
deemed received when it is deposited with such service or the United States Postal Service (as
applicable):
2
Kalahari's Address: KR Acquisitions,LLC
P.O.Box 590
1305 Kalahari Drive
Wisconsin Dells, WI 53965
Ann: Ralph Gundrum
With a copy to: Sam McEown
Jackson Walker,LLP
1401 McKinney St. Suite 1900
Houston,TX 77010
TEDCO's Address: 221 E.Main Street
Round Rock,TX 78664
Attn: Laurie Hadley
With a copy to: Sheets&Crossfield
309 Main Street
Round Rock, TX 78664
Attn: Stephan L. Sheets
City's Address: 221 E. Main Street
Round Rock,TX 78664
Attn: Laurie Hadley
With a copy to: Sheets& Crossfield
309 Main Street
Round Rock,TX 78664
Attn: Stephan L. Sheets
8. Severability. If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any applicable law, then such provision will be deemed to be modified to
the extent necessary to render it legal, valid and enforceable, and if no such modification will
render it legal,valid and enforceable, then this Agreement will be construed as if not containing
the provision held to be invalid, and the rights and obligations of the Parties will be construed
and enforced accordingly.
9. Binding Effect. This Agreement and the terms, covenants and conditions herein
contained shall inure to the benefit of and be binding upon the successors and assigns of any of
the Parties hereto.
10. Entire Agreement. This Agreement, together with the exhibits referenced herein,
contains the entire understanding between the Parties with respect to the subject matter of this
Agreement, and there are no other agreements, oral or written, between the Parties regarding the
subject matter of this Agreement. All of the exhibits attached to this Agreement are incorporated
herein, and made a part of, this Agreement. This Agreement can be amended or terminated only
by written agreement signed by the Parties hereto.
3
11. No Partnership or Agency. This Agreement is not intended, and nothing herein
shall be construed, to make the Parties partners, co-tenants or joint venturers with each other,
unless otherwise expressly provided for herein.
12. Attorneys' Fees. If any party defaults in the performance of its obligations
hereunder, the non-defaulting party shall be entitled to recover from the defaulting party its
reasonable attorneys' fees, expenses and costs of court in enforcing the obligations of the
defaulting party, in accordance with Section 271.153 of the Texas Local Government Code.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas,and venue shall be in Williamson County.
14. Counterparts. This Agreement may be executed in multiple counterparts, the
legal affect of which will be the same as if all Parties hereto had signed a single instrument.
DATED AND EFFECTIVE as of the Effective Date first written above.
4
KR ACQUISITIONS,LLC
f
By:
Todd Nelson,President
ROUND ROCK TRANSPORTATION AND ECONOMIC
DEVELOPMENT COPION
By:
n—Peesiden! I
APP ED as tofo � h'1rV[C.e .FclpeYl+
1
Stephat L. Sheets,Corporation Attorney
CITY OF ROUND
By:
APP VED as to rm:
Step L. Sheets, Corporation Attorney
[Signature Page to Onsite Public Improvement Agreement]
ACKNOWLEDGMENT
STATE OF WISCONSIN §
COUNTY OF 6a-6- §
ah
This instrument was acknowledgeA before me on the 13 day of6- I , 2018,
by T• ll lM45. asre f of KR Acquisition LLC, a Delaware
limited liability company. uN
Notary Public *? —•— `:*
State of Wisconsin PUBLIC
My Commission:
[Acknowledgement to Onsite Public Improvement Agreement]
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF WILLIAMSON §
This instrument was acknowledged before me on the_V day of L 2018,
by Will Peckham,as Mayor Pro-Tem of the CITY OF ROUND ROCK,TE S,a home rule city
and municipal corporation.
a��SPpV PUB�i• ' ' Notary Public
_ c•: _ State of Texas
••.:pyor �A:'•`: Printed Name
i1 'N�pMy Commission Expires:
i
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF WILLIAMSON §
lb
This instrument was acknowledged before me on the 1 day of 2-I 1"' 2018,
by Will Peckham, the Vice President of the Round Rock Transportation and Economic
Development Corporation, a Type-B corporation established pursuant to the authority of Chapter
501 of the Texas Local Government Code,on behalf of said Type-B Corporation.
Notary Public
State of
Texas
�
Printed Name
iq
lit tE�11,1'% My Commission Expires:
Acknowledgement to Onsite Public Improvement Agreement
EXHIBIT A
General Depiction of Onsite Improvements
[SEE ATTACHED]
Exhibit A to Onsite Public Improvement Agreement
a
_l q
Exhibit A to Onsite Public Improvement Agreement