Contract - Vista Oaks Municipal Utility District - 8/22/2019 AMENDMENT TO PASS-THROUGH AGREEMENTS
This AMENDMENT TO PASS-THROUGH AGREEMENTS (this "Amendment") is
entered into effective as of November 1, 2018 (the "Effective Date") between the CITY OF
ROUND ROCK, TEXAS, a home rule municipality located in Williamson County, Texas (the
"City"), and VISTA OAKS MUNICIPAL UTILITY DISTRICT, a political subdivision of the
State of Texas operating under Chapters 49 and 54 of the Texas Water Code and formerly known
as Williamson County Municipal Utility District No. 9 (the "District"). The City and the District
are sometimes referred to individually in this Amendment as a "Party" and collectively as the
"Parties".
A. In accordance with (i) that certain Agreement between Williamson County
Municipal Utility District No. 9, BJM Mayfield Ranch, Ltd., and the City of Round Rock for
Pass-Through Water and Wastewater Service dated effective June 14, 2001 (the "Maufleld
Ranch Agreement"); and (ii) that certain Agreement Between Williamson County Municipal
Utility District No. 9, Continental Homes of Texas, L.P., and the City of Round Rock for Pass-
Through Wastewater Service dated January 22, 2004 (the "Preserve at Stone Oak Agreement")
(collectively, the "Pass-Through Agreements"), the City was authorized to pass water and
wastewater through certain District facilities for the purpose of providing water and wastewater
service to the Mayfield Ranch Development (the "Maufield Ranch Property") and the Preserve
at Stone Oak development (the "Preserve at Stone Oak Property") (collectively, the
"Properties"),both of which are located adjacent to the boundaries of the District.
B. Pursuant to the Pass-Through Agreements, the City agreed to pay the District on
a monthly basis a fee of$3.75 per active wastewater service connection within the Properties per
month for the operation and maintenance of the District's lift station used to provide pass-
through service to the Properties (the"Operations and Maintenance Payment").
C. The City has notified the District that the City has over-paid the District for the
Operations and Maintenance Payments under the Pass-Through Agreements because the City
failed to accurately account for the number of active wastewater service connections within the
Properties for the monthly Operations and Maintenance Payments made from September 2014
to October 2018 (the"Overpayments").
D. The City has proposed that, rather than refunding the entire balance of the
Overpayments, the District issue a $15,326.25 credit to the City, representing the Overpayments
from November 2016 to October 2018, and use the credit to offset future Operations and
Maintenance Payments.
E. The Parties now desire to resolve any concerns and disputes related to the
Overpayments and any amounts owing to the City and clarify the process under which future
Operations and Maintenance Payments will be paid to the District under the Pass-Through
Agreements.
NOW THEREFORE, in consideration of the mutual promises, covenants, obligations,
and benefits contained in this Amendment, the City and the District contract and agree as
follows:
1. Mutual Release. In consideration of the District's agreement to issue a
$15,326.25 credit (the "Credit") to the City, which will be used to offset the City's future
Operations and Maintenance Payments in accordance with the schedule set forth in Section 2
below, the receipt and sufficiency are hereby acknowledged by the City, and in consideration of
the mutual agreements, conditions, representations, warranties, recitals, covenants, and
statements of intention contained herein, the City hereby accepts the Credit in full settlement,
lWo870o87.31
compromise, and release of all claims against the District arising from or related to the
Overpayments, pursuant to this Amendment. The City and District hereby fully and
unconditionally release, acquit, and forever discharge each other and their respective officers,
directors, employees, agents, and representatives from any and all actual or potential claims,
suits, causes of action, debts, liabilities, demands, obligations, promises, and acts, agreements,
costs, expenses (including, but not limited to, attorneys' fees), and damages (collectively,
"Claims"), known or unknown, of any kind or character whatsoever, which the City and/or the
District currently has, has ever had in the past, or may have in the future, and whether based in
statute, common law, or otherwise, arising out of or related to the Overpayments.
2. Operations and Maintenance Payments. As of the Effective Date, in lieu of
paying the Operations and Maintenance Payments to the District on a monthly basis based on
the City's accounting of the number of active wastewater service connections within the
Properties each month, the City will pay the Operations and Maintenance Payments to the
District on an annual basis based off of(i) 455 active wastewater service connections within the
Mayfield Ranch Property at $3.75 per connection per month and (ii) 87 active wastewater
service connections within the Preserve at Stone Oak Property at $3.75 per connection per
month. Within 3o days after receipt of an invoice from the District,the City will pay the District,
as the annual Operations and Maintenance Payment for the period beginning on the Effective
Date and ending on September 30, 2019, the amount of $7,031.25, representing $18,768.75
under the Mayfield Ranch Agreement and $3,588.75 under the Preserve at Stone Oak
Agreement,less the $15,326.25 Credit. On or before October 31St of each subsequent fiscal year
(October 1 — September 3o) during the terms of the Pass-Through Agreements, the City will pay
to the District as the annual Operations and Maintenance Payments, $20,475.00 under the
Mayfield Ranch Agreement and $3,915.00 under the Preserve at Stone Oak Agreement. Interest
charges for any overdue Operations and Maintenance Payments shall be paid by the City in
accordance with Texas Government Code Section 2251.025. The $3.75 per active wastewater
service connection charge may be adjusted by the District annually to reflect the actual
reasonable and necessary costs of operating and maintaining the lift station; provided,however,
the District shall provide written notice to the City of any adjustment at least thirty days prior to
the effective date of such adjustment.
3. Notices. All notices to the District must be in writing and mailed by Certified
Mail, Return Receipt Requested, and addressed to:
Vista Oaks Municipal Utility District
c/o Armbrust&Brown, PLLC
Attn: Jenn Scholl
loo Congress Avenue, Suite 1300
Austin,Texas 78701
with a copy to:
Vista Oaks Municipal Utility District
c/o Crossroads Utility Services LLC
Attn:Andrew Hunt
26o1 Forest Creek Drive
Round Rock,Texas 78665
All notices to the City must be in writing and mailed by Certified Mail, Return Receipt
Requested, addressed to:
City of Round Rock
c/o City Manager
IM870o87.31
Page 2
221 East Main Street
Round Rock,Texas 78664
with a copy to:
City of Round Rock
c/o Sheets&Crossfield, P.C.
Attn: Charlie Crossfield
3o9 East Main Street
Round Rock,Texas 78664
A Party may change its address by giving written notice of such change to the other Parties.
4. Effect of Amendment. Except as specifically provided in this Amendment, the
terms of the Pass-Through Agreements continue to govern the rights and obligations of the
Parties, and the terms of the Pass-Through Agreements remain in full force and effect. If there
is any conflict or inconsistency between this Amendment and the Pass-Through Agreements,
this Amendment will control and modify the Pass-Through Agreements. While not all parties to
the Pass-Through Agreements have executed this Amendment, the City and the District intend
this Amendment to be binding as between themselves in order to (i) resolve any concerns and
disputes related to the Overpayments and any amounts owing to the City; and (ii) clarify the
process under which future Operations and Maintenance Payments will be paid to the District
under the Pass-Through Agreements. All Parties have participated in the negotiation and
drafting of this Amendment; therefore, in the event of any ambiguity, the provisions of this
Amendment will not be construed for or against any Party.
5. Future Effect. The provisions of this Amendment will be binding upon and inure
to the benefit of the Parties and their respective successors and assigns until the expiration of
the term of the underlying Pass-Through Agreements, at which time the provisions of this
Amendment will be of no further force or effect.
6. Waiver. Any failure by a Party to insist upon strict performance by the other
Party of any material provision of this Amendment will not be deemed a waiver of that or of any
other provision, and a Party may at any time thereafter insist upon strict performance of any
and all of the provisions of this Amendment.
7. Severability. If any provision of this Amendment is illegal, invalid, or
unenforceable under present or future laws, it is the intention of the Parties that the remainder
of this Amendment not be affected, and it is also the intention of the Parties that, in lieu of each
provision of this Amendment that is illegal, invalid, or unenforceable, there be added as a part of
this Amendment a provision as similar in terms to the illegal, invalid, or unenforceable
provision as is possible, and is legal,valid, and enforceable.
8. Applicable Law. This Amendment will be construed under the laws of the State
of Texas and all obligations of the Parties hereunder are performable in Williamson County,
Texas. Venue for any action arising under this Amendment will be in Williamson County,Texas.
9. Third Party Beneficiaries. Except as otherwise expressly provided, nothing in
this Amendment is intended to confer upon any person, other than the Parties and their
successors and permitted assigns, any benefits, rights, or remedies under or by reason of this
Amendment.
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Page 3
10. Assignment. A Party's rights and obligations under this Amendment may not be
assigned or transferred without the consent of the other Parties, which consent will not be
unreasonably withheld or delayed.
11. Amendment. This Amendment may only be amended by written agreement
executed by all of the Parties.
12. Counterparts. This Amendment may be executed simultaneously in two or more
counterparts, each of which will be deemed an original, but all of which will constitute one and
the same instrument. Signature by facsimile will be deemed to have the same effect as an
original signature.
13. Authorijy. Each Party represents and warrants that it has the full right, power,
and authority to execute this Amendment and all related documents. Each person executing this
instrument on behalf of a Party represents that he or she is an authorized representative of and
has the authority to sign this document on behalf the respective Party.
14. Effective Date. This Amendment will be effective upon the date of due execution
by the last Party to sign this Amendment, as indicated below.
Executed to be effective as of the Effective Date.
[signature pages immediately follow]
fWo870o87.31
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COUNTERPART SIGNATURE PAGE TO
AMENDMENT TO PASS-THROUGH AGREEMENTS
DISTRICT:
•�°'"`e`°` VISTA OAKS MUNICIPAL UTILITY DISTRICT
ONIGIPAL 0 •a®oma
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• Mike Asbulipresident
Board of r ctors
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••9••% o18QE6�h��0 Date.
THE STATE OF TEXAS §
COUNTY OF WILLIAMSON §
This instrument was acknowledged before me this day of
KAVA cA.L� , 2019 by Mike Asbury, President of the Board of Directors of Vista
Oaks Municipal Utility District, a political subdivision of the State of Texas operating under
Chapters 49 and 54 of the Texas Water Code, on behalf of said district.
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Mo870o87.31
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COUNTERPART SIGNATURE PAGE TO
AMENDMENT TO PASS-THROUGH AGREEMENTS
CITY:
CITY OF RO D ROCK, TEXAS
By:
"A /
Craig organ ayor
Date: 7i
THE STATE OF TEXAS §
COUNTY OF WILLIAMSON §
This instrument was acknowledged before me this �-y=� day of
,BA4"Eri— , 2oig by Craig Morgan, Mayor of the City of Round Rock, Texas,
a home rule municipality located in Williamson County,Texas, on behalf of said municipality.
'�Al VA L - �
(SEAL) Notary Pu lic Signature
010;
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{Wo870o87.31
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