Contract - KR Acquisitions Kalahari - 2/27/2020 FIRST AMENDMENT TO
ONSITE PUBLIC IMPROVEMENT AGREEMENT
This First Amendment to Onsite Public Improvement Agreement (this
"Amendment") is entered into this A*�day of , 2020 (the "Effective Date"),
by and among the City of Round Rock, Texas, a Texas h me rule municipal corporation
(the "C "), the Round Rock Transportation and Economic Development Corporation, a
"Type B corporation"created under the authority of Chapter 501,Texas Local Government
Code (the "TEDCO") and KR Acquisitions, LLC, a Delaware limited liability company
(the"Kalahari"). The City,the TEDCO and Kalahari are, collectively,the"Parties"to this
Amendment.
RECITALS
WHEREAS, the Parties entered into that certain Onsite Public Improvement
Agreement as of April 26, 2020(the"Agreement"); and
WHEREAS, all capitalized terms used in this Amendment shall be defined as
stated in the Agreement unless otherwise defined herein; and
WHEREAS, except as amended herein, all of the terms and provisions of the
Agreement shall remain in effect and shall apply to this Amendment; and.
WHEREAS, the Parties wish to amend the Agreement, as set forth below.
NOW, THEREFORE, in consideration of the mutual benefits and promises and
for other good and valuable consideration,the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. New Section 5. Section 5 of the Agreement is hereby deleted and replaced by the
following:
5. Contribution by TEDCO.
a. Interim Payments.
1. Application for Interim Pa ice. Kalahari may, from time
to time,make an application(an"Application")for payment for work done
with respect to the Onsite Public Improvements. Such application shall
include a signed statement from Kalahari's general contractor estimating,
by value, the percent of the work completed with respect to the Onsite
Public Improvements(the"Estimate"). The Parties acknowledge and agree
that Kalahari and its general contractor cannot provide the cost of such work
completed because the Onsite Public Improvements are part of a larger
project and the costs for the Onsite Public Improvements have not been
segregated from the costs of that larger project.
2. Review of Application. Upon receipt of an Application,the
City and/or TEDCO shall promptly review it and may make reasonable
inquiries into the Estimate. Kalahari shall cooperate with such inquiries. If
the City and/or TEDCO disagree with the Estimate, then the Parties shall
meet to attempt to agree on the percent of the work completed with respect
to the Onsite Public Improvements as of a recent date.
3. Payment. Promptly after the Parties agree on the percent of
the work completed with respect to the Onsite Public Improvements,
TEDCO shall pay Kalahari an amount equal to: (x)Fifteen Million Dollars
($15,000,000)multiplied by the agreed upon percent of the work completed
with respect to the Onsite Public Improvements minus (y) amounts
previously paid under this subsection.
b. Final Payment. Upon Completion of the Onsite Public
Improvements in accordance with the requirements set forth herein, TEDCO will
thereafter become obligated to pay (i)Fifteen Million Dollars ($15,000,000) (the
"Onsite Improvement Contribution") minus (ii) amounts previously paid pursuant
to Section 5.a.3. This amount will be paid by TEDCO within thirty (30) days
following such Completion.
2. Legal Representation of the Parties.This Amendment was negotiated by the Parties
hereto with the benefit of legal representation and any rules of construction or interpretation
otherwise requiring this Amendment to be construed or interpreted against any Parry shall
not apply.
3. Representations and Warranties. The City represents and warrants to Kalahari that:
(a)this Amendment is within its authority,(b)it is duly authorized and empowered to enter
into this Amendment, (c) this Amendment is enforceable against the City; and (d) all
obligations of the City are proprietary, unless otherwise ordered by a court of competent
jurisdiction. Kalahari represents and warrants to the City that it has the requisite authority
to enter into this Amendment and this Amendment is enforceable against it.
4. Interpretation. Each of the Parties has been represented by counsel of their
choosing in the negotiation and preparation of this Amendment. Regardless of which party
prepared the initial draft of this Amendment, this Amendment shall, in the event of any
dispute, however its meaning or application, be interpreted fairly and reasonably and
neither more strongly for or against any Party.
5. Applicable Law. This Amendment is made,and shall be construed and interpreted,
under the laws of the State of Texas and venue shall lie in Williamson County,Texas.
6. Paragraph Headings. The paragraph headings contained in this Amendment are for
convenience only and will in no way enlarge or limit the scope or meaning of the various
and several paragraphs.
EXECUTED to be effective as of the Effective Date.
(SIGNATURES ON FOLLOWING PAGES)
CITY OF ROUND ROCK, TEXAS,
a home rule city and municipal
corporation
By:
Date:
APPR D as tform:
N
Stephan V. Sheets, City Attorney
ROUND ROCK TRANSPORTATION
AND ECONOMIC DEVELOPMENT
CORPO TION
By:
Date: c�-97,210QD
APPR V as to form:
Stephan 9. Sheets, Corporation's Attorney
KR ACQUISITIONS, LLC
a Delaware limited liability company
By:
Todd Nelson, President
Date: Q�