Contract - RSP Partners Development, SEDC Devco, Inc., Siena MUD No. 1, Siena MUD No. 2 - 5/24/2018 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 Devoo, Inc., a Texas corporation ("SEDC"), Siena Municipal
Utility District No. 1 ("District No. 1"), 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
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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.
{W0767522.2} 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]
1W0767522.21 3
CITY OF ROUND ROCK
By:
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Craig org ayor
Date: Qj
Acknowled ement
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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
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SEDC DEVCO,INC.,
a Texas orp�•ation
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John S.Lloyd,President
Date:,2018
Acknowledgementv��, yy�
This instrument was acknowledged before me on this 1 day of ( I 2018,
by John S. Lloyd, President of SEDC Devon, Inc., a Texas corporation, on/behalf of said
corporation.
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RSP PARTNERS DEVELOPMENT,L.P.,
a Texas limited partnership
By: RSP GP,INC.,
a Texas corporation,
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Date: I I- (T ,2018
Acknowledge
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This instrument was acknowledged before me on this CI&-L- day of I�t aV 2018,
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.
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SIENA MUNICIPALUTILITY DISTRICT NO.2
UTi,�., ;, By:
•J'F�G,••....:`.:�is�'',; JeffO'Jibway,President
Board of Directors
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This instrument was acknowledged before me on this Oday of Makj 2018,
by Jeff O'Jibway, President, Board of Directors of Siena Municipal Utility Distfict No. 2, on
behalf of said District.
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Acknowledgement
This instrument was acknowledged before me on this L'aay of 2018,
by Doug Kuenstler, President, Board of Directors of Siena Municipal Utility Di 'ct No. 1, on
behalf of said District.
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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.
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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 2252.908")requires disclosure of certain matters by contractors entering into a contract
with a local government 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 page 1 of the Contract, and electronically file it with the Texas Ethics Commission
("TEC"); and 2) submit the signed Form 1295, including 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„-,form1295.htm. 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 ("Chapter
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/fonns/CIQ-New-2015.pdf 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.
1W0767522.21 1
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.
1W0767522.21 2