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R-2018-5460 - 5/24/2018 RESOLUTION NO. R-2018-5460 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 ("Districts"), and WHEREAS, by Resolution No. R-06-10-12-11 E 1, 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, by Resolution No. R-10-07-22-l OD 1, the City approved the Second Amendment to the aforesaid Agreement with Developer to provide that the City's reimbursement be made in progress payments during the construction of the McNutt Interceptor, and WHEREAS, by Resolution No. R-13-11-26-F3, the City approved the Third Amendment to said Agreement to state that Williamson County will assume sole responsibility for review and approval of all construction plans, development plans, preliminary plans and subdivision plats, and to state that Developer will partially assign its rights under the Consent Agreement to SEDC Devco, Inc., a subsequent developer of a portion of the Land; and WHEREAS, by Resolution No. R-2016-3248, the City approved the Fourth Amendment to said Agreement to add approximately 22.31 acres of land into the boundaries of Siena Municipal Utility District No. 2; and WHEREAS, the City Council now wishes to approve the Fifth Amendment to the aforesaid Agreement to address SEDC Devco, Inc.'s construction of Line C5 Phase 4 of the McNutt Interceptor, Now Therefore 0112 1804;00401210 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 Fifth Amendment to Amended and Restated Consent Agreement Among City of Round Rock, Texas, RSP Partners Development, L.P., SEDC Devco, Inc., Siena Municipal Utility District No. 1, and Siena Municipal Utility District No. 2, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 24th day of May, 2018. CRAIG ORGA , Mayor City of ound R ck, Texas ATTEST: 5�1�- 0-&* �LL SARA L. WHITE, City Clerk 2 EXHIBIT „A„ FIFTH AMENDMENT TO AMENDED AND RESTATED CONSENT AGREEMENT AMONG CITY OF ROUND ROCK, TEXAS, RSP PARTNERS DEVELOPMENT, L.P., (FORMERLY DOUBLE J INVESTMENTS, L.P.), SEDC DEVCO, INC., 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 Fifth Amendment to the Amended and Restated Consent Agreement ("Fifth Amendment") is entered into among the City of Round Rock, Texas, a home rule city located in Williamson County, Texas (the "City"), RSP Partners Development, L.P., a Texas limited partnership ("Developer"), SEDC Devco, Inc., a Texas corporation ("SEDC"), Siena Municipal Utility District No. 1 ("District No. I"), and Siena Municipal Utility District No. 2 ("District No. 2"), or(the "Districts") as appropriate. RECITALS WHEREAS, the City and Developer entered into the Amended and Restated Consent Agreement (the "Original Agreement" and, as amended by the First Amendment, Second Amendment, Third Amendment and Fourth Amendment, as each is defined below, the "Consent Agreement") as of October 18, 2006, and the Districts have joined in the Consent Agreement; and WHEREAS, the City and Developer entered into the First Amendment to the Amended and Restated Consent Agreement as of December 18, 2008 (the "First Amendment"), and the Districts have joined in the First Amendment upon organization of their respective boards of directors; and WHEREAS, the City, Developer and the Districts entered into the Second Amendment to the Amended and Restated Consent Agreement as of July 22, 2010 (the "Second Amendment"); and WHEREAS, the City, Developer, SEDC and the Districts entered into the Third Amendment to and Partial Assignment of Amended and Restated Consent Agreement as of November 26, 2013 (the "Third Amendment"); and WHEREAS, the City, Developer, SEDC and the Districts entered into the Fourth Amendment to Amended and Restated Consent Agreement as of March 23, 2016 (the "Fourth Amendment"); and (W0767522.2) ] WHEREAS, the City, Developer, SEDC and the Districts now desire to amend the Consent Agreement to address SEDC's construction of Line C5 Phase 4 of the McNutt Interceptor. 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 Line C-5 Phase 4 Service to the Districts from the McNutt Interceptor requires the construction of Line C, which connects to Line B is comprised of six phases: Line C-1, Line C-2, Line C-3, Line C-4, Line C-5 and Line C-8, as shown on Exhibit C to the Original Agreement. SEDC has constructed Line C-5 Phase 4, as shown on Exhibit A hereto. In order to serve the Districts only, Line C-5 Phase 4 would be required to be constructed as a 12-inch line. At the City's request, Line C-5 Phase 4 was oversized as an 18-inch Line in order to provide additional capacity for future development. (a). Plans; Oversizing. Prior to construction, Line C-5 Phase 4 was designed by Randall Jones Engineering, Inc. (the "Engineer") and the plans and specifications (the "Plans") were reviewed and approved by the City. Within forty-five (45) days after the date of this Amendment, the City will reimburse SEDC for the City's cost share, as described in Subsection (c) below, of (a) engineering fees for the Plans, which is $6,844.50; and (b) the costs of inspection, testing, permits and environmental studies for Line C-5 Phase 4, which is $800.00. (b). Bidding and Contract Award. The contract for construction of Line C-5 Phase 4 was advertised for bid by SEDC, on behalf of the Districts, in accordance with all applicable legal requirements, including Chapter 49, Texas Water Code. Line C-5 Phase 4 was bid both at the size originally proposed by SEDC and at the size required by the City. The contract for Line C-5 Phase 4 was awarded by SEDC, on behalf of the Districts, to the lowest responsible bidder, Cash Construction Co., Inc. (c). City Cost Share. The City's share of the costs of Line C-5 Phase 4 is the difference between the cost of such phase if built at the size required to serve the Districts only and the cost of the phase built at the size required by the City, which is $68,445.00. (d). Construction. Line C-5 Phase 4 has been constructed in a good and workmanlike manner, and all material used in such construction was substantially free from defects and fit for its intended purpose. The City has inspected the construction, and SEDC has paid the City a portion of the costs of such inspections, based on the percentage of construction costs for Line C- 5 Phase 4 being borne by SEDC as determined under Subsection (c). (e). Payment by City. The City agrees to pay a share of the cost of Line C-5 Phase 4, based on the incremental cost determined under Subsection (c), above, from the City's oversize account approved for capital improvement projects, in accordance with Section 36-155 of the Round Rock City Code regarding reimbursement for oversized mains. tW0767522.2) 2 (f). Guarantee and Reservation of Capacity. Upon payment by the City of its cost share as provided above, Line C-5 Phase 4 will be transferred and conveyed to the City subject to the irrevocable and permanent reservation of 601 LUEs of capacity to SEDC on behalf of the Districts. The conveyance will also be subject to SEDC's right to reimbursement from the Districts as permitted by the rules of the Commission. The City will accept Line C-5 Phase 4 for ownership, operation and maintenance, subject to the reservations described above. SEDC may, at any time, transfer its reserved capacity Line C-5 Phase 4 to the Districts by written notice to the City. SEDC shall not transfer such capacity to any other entity or person without the express written consent of the City, which will not be unreasonably withheld. ARTICLE II Defined Terms All terms delineated with initial capital letters in this Fifth Amendment that are defined in the Consent Agreement will have the same meanings in this Fifth Amendment. Other terms have the meanings commonly ascribed to them. ARTICLE III Effect of Amendment Except as specifically provided in this Fifth Amendment, the terms of the Consent Agreement will continue to govern the rights and obligations of the parties, and all terms of the Consent Agreement will remain in full force and effect. If there is any conflict or inconsistency between this Fifth Amendment and the Consent Agreement, this Fifth Amendment will control and modify the Consent Agreement. ARTICLE IV Execution; Counterparts To facilitate execution, this Fifth Amendment may be executed in any number of counterparts, and it will not be necessary that the signatures of all parties be contained on any one counterpart. Additionally, for purposes of facilitating the execution of this Fifth Amendment: (a) the signature pages taken from separate, individually executed counterparts of this Fifth 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 Fifth 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 Fifth Amendment on the dates indicated below. [Signature Pages to Follow] (W0767522.2) 3 CITY OF ROUND ROCK By: _ A A / Craig org ayor Date: Qj Acknowled ement VA This instrument was acknowledged before me on this 4a day of 120185 by Craig Morgan, Mayor of the City of Round Rock, on behalf of said municipals (SEAL) ���\1111111111//// • �P�Y p� ` .•• Notary Public, State of Texas r � • t Co i '•:�`1265g6�•• ��� 01 S 1W2�����\\ {W0767522.21 RSP PARTNERS DEVELOPMENT,L.P., a Texas limited partnership By: RSP GP, INC., a Texas corporation, its General Partner By: John S. Lloyd, President Date: , 2018 Acknowled eg_ment This instrument was acknowledged before me on this day of , 20181 by John S. Lloyd, President of RSP GP, Inc., a Texas corporation, the General Partner of RSP Partners Development, L.P., a Texas limited partnership, on behalf of said entities. (SEAL) Notary Public, State of Texas {W0767522.2} SEDC DEVCO, INC., a Texas corporation By: John S. Lloyd, President Date: 12018 Acknowledgement This instrument was acknowledged before me on this day of , 20185 by John S. Lloyd, President of SEDC Devco, Inc., a Texas corporation, on behalf of said corporation. (SEAL) Notary Public, State of Texas {W0767522.2} SIENA MUNICIPAL UTILITY DISTRICT NO. 1 By: Doug Kuenstler, Vice President Board of Directors Date: , 2018 Acknowled ement This instrument was acknowledged before me on this day of , 20181 by Doug Kuenstler, President, Board of Directors of Siena Municipal Utility District No. 1, on behalf of said District. (SEAL) Notary Public, State of Texas 1W0767522.21 SIENA MUNICIPAL UTILITY DISTRICT NO. 2 By: Jeff O'Jibway, President Board of Directors Date: , 2018 Acknowledgemen This instrument was acknowledged before me on this day of , 2018, by Jeff O'Jibway, President, Board of Directors of Siena Municipal Utility District No. 2, on behalf of said District. (SEAL) Notary Public, State of Texas 1W0767522.21 Y rr LAW C9 MA$4 I V d CA(pYA IAFC YUQNo. ] , d ` i 0.x1 a,r w c 0 AA(plA LAN[YQQ Ah , 0 N ONrrM ne yA �P r 3 CONTRACT ADDENDUM This Contract Addendum ("Addendum") is incorporated into the attached Fifth Amendment to Amended and Restated Consent Agreement Among City of Round Rock, Texas RSP Partners Development, L.P., (Formerly Double J Investments, L.P.), SEDC Devco, Inc., Siena Municipal Utility District No. 1 and Siena Municipal Utility District No. 2 (Formerly Williamson County Municipal Utility District Nos. 19 and 20 (the "Contract') between RSP Partners Development, L.P. and SEDC Devco, Inc. ("Developers") and Siena Municipal Utility District No. 1 and Siena Municipal Utility District No. 2 (the "Districts'). If there is any conflict between the terms of the attached Contract and this Addendum,the terms of this Addendum will control. 1. INTERESTED PARTIES Developers acknowledge that Texas Government Code Section 2252.908 ("Section 2151.908')requires disclosure of certain matters by contractors entering into a contract with a local goverunent entity such as the District. Developers confirm that they have reviewed Section 2252.908 and will 1) complete FORM 1295, using the unique identification number specified on pace 1 of the Contract, and electronically file it with the Texas Ethics Commission ("TEC"); and 2) submit the signed Form 1295, includine the certification of filing number of the Form 1295 with the TEC, to the Districts at the same time the Developers execute and submit the Contracts to the Districts. Form 1295 is available at the TEC's website: https://www.ethics.state.tx.us/whatsnew/elf info forml295.btm. This Contract is not effective until the requirements listed above are satisfied and any award of the Contract by the District is expressly made contingent upon Developer's compliance with such requirements. The signed Form 1295 may be submitted to the District in an electronic format. 2. CONFLICTS OF INTEREST Developers acknowledge that Texas Local Government Code Chapter 176 ("Chanter 176') requires the disclosure of certain matters by contractors doing business with or proposing to do business with local government entities such as the Districts. Developers confirm that they have reviewed Chapter 176 and, if it is required to do so, will complete and return FORM CIQ promulgated by the TEC and available on the TEC website at https://www.ethics.state.tx.us/forms/CIQ-New-2015.t)df within seven days of the date of submitting this Contract to the Districts or within seven days of becoming aware of a matter that requires disclosure under Chapter 176,whichever is applicable. 3. VERIFICATION UNDER CH. 2270,TEXAS GOVERNMENT CODE For purposes of Chapter 2270 of the Texas Government Code, Developers represent and warrant that, at the time of execution and delivery of this Contract, none of the Developers, nor any wholly owned subsidiary, majority-owned subsidiary, parent company, or affiliate of Developers, boycott Israel. Developers agree that, except to the extent otherwise required by applicable federal law, including, without limitation, 50 U.S.C. Section 4607, neither of the Developers, nor any wholly owned subsidiary, majority-owned subsidiary, parent company, or affiliate of the Developers, will boycott Israel during the term of this Contract. The terms "boycotts Israel" and "boycott Israel" as used in this provision have the same meaning assigned to the term"boycott Israel"in Section 808.001 of the Texas Government Code. iW0767522.2} I 4. VERIFICATION UNDER CH. 2252,TEXAS GOVERNMENT CODE For purposes of Subchapter F of Chapter 2252 of the Texas Government Code, Developers represent and warrant that, at the time of execution and delivery of this Contract, neither of the Developers, nor any wholly owned subsidiary, majority-owned subsidiary, parent company, or affiliate of the Developers, (i)engage in business with Iran, Sudan, or any foreign terrorist organization as described in Chapters 806 or 807 of the Texas Government Code, or Subchapter F of Chapter 2252 of the Texas Government Code, or(ii)is a company listed by the Texas Comptroller under Sections 2270.0201 or 2252.153 of the Texas Government Code. The term "foreign terrorist organization" as used in this provision has the same meaning assigned to such term in Section 2252.151 of the Texas Government Code. IWa767522.2) 2 CERTIFICATE OF INTERESTED PARTIES FORM 1295 10f1 Complete Nos.1-a and 6 if there are interested parties, OFFICE USE ONLY Complete Nos,1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. SEDC Devco,Inc. 2018-355956 Austin,TX United States Date Filed: 2 Name of-66—vernmental entity or state agency that is a party to the contract for which the form is 05/18/2018 being filed. City of Round Rock,Texas Date Acknowledged: 3 Provide the Identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. Fifth Amendment to Consent Fifth Amendment to Amended and Restated Consent Agreement q Nature of interest Name of Interested Party City,State,Country(place of business) (check applicable) Controlling Intermediary Lloyd,John Austin,TX United States X 5 Check only if there is NO Interested Party, 6 UNSWORN DECLARATION My name is ` 1�r 1� 9 -1 1 , and my dale of birth is My address is tillA� C7,oe-k.c.1� .� y 'i T\� —I`o'-? (o U5 (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in �C,\, Count State of �xCkS _ 1 County, on the`s day of � ,20 (mo h) (year) Signature of authorized agent of contracting business entity (Declarant) Forms provided by Texas Ethics Commission www,ethics,state,tx.us Version V1.0.5523 CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2018-355956 SEDC Devco, Inc. Austin,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 05/18/2018 being filed. City of Round Rock,Texas Date Acknowledged: 05/23/2018 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. Fifth Amendment to Consent Fifth Amendment to Amended and Restated Consent Agreement 4 Nature of interest Name of Interested Party City,State,Country(place of business) (check applicable) Controlling I Intermediary Lloyd,John Austin,TX United States X 5 Check only if there is NO Interested Party. ❑ 6 UNSWORN DECLARATION My name is and my date of birth is My address is (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in County, State of on the day of 20 (month) (year) Signature of authorized agent of contracting business entity (Declarant) Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.5523 CERTIFICATE OF INTERESTED PARTIES FORM 1295 l of 1 Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties, CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2018-355960 RSP Partners Development,L.P. Austin,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 05/18/2018 being filed. City of Round Rock,Texas Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. Fifth Amendment to Consent Fifth Amendment to Amended and Restated Consent Agreement 4 Nature of interest Name of Interested Party City,State,Country(place of business) (check applicable) Controlling I Intermediary New Horizon Capital III,LP Austin,TX United States X Athena Equity 2002,LP Austin,TX United States X Minerva,Ltd. Austin,TX United States X Lloyd,John Austin,TX United States X New Horizon Capital,L.P, Austin,TX United States X 5 Check only if there is NO Interested Party. ❑ 6 UNSWORN DECLARATION ! ' My name is _�O1}n S U. Oyo _ and my date of birth is My address is t�a� �t.�.0�) ! +1ln _ �P VSr7 (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. s Executed in Tf(A iS County, State of_� on thetS!�—day of A 20 . (mo th) (year) Signature of authorized agent of contracting business entity (Declarant) Forms provided by Texas Ethics Commission www.ethics.state,tx.us Version V1.0.5523 CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2018-355960 RSP Partners Development, L.P. Austin,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 05/18/2018 being filed. City of Round Rock,Texas Date Acknowledged: 05/23/2018 g Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. Fifth Amendment to Consent Fifth Amendment to Amended and Restated Consent Agreement 4 Nature of interest Name of Interested Party City,State,Country(place of business) (check applicable) Controlling Intermediary New Horizon Capital III, LP Austin,TX United States X Athena Equity 2002, LP Austin,TX United States X Minerva, Ltd. Austin,TX United States X Lloyd,John Austin,TX United States X New Horizon Capital, L.P. Austin,TX United States X 5 Check only if there is NO Interested Party. ❑ 6 UNSWORN DECLARATION My name is and my date of birth is My address is (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in County, State of on the day of .20 (month) (year) Signature of authorized agent of contracting business entity (Declarant) Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.5523