R-2023-412 - 12/7/2023 RESOLUTION NO. R-2023-412
WHEREAS, Siena Municipal Utility District No. 1 and Siena Municipal Utility District No. 2
("Districts")purchase and receive wholesale wastewater service from the City of Round Rock("City");
and
WHEREAS, ELMURR LLC ("ELMURR")plans to develop Lot 3, Block A, Siena Section 35,
located at 101 Limmer Loop, Round Rock, Texas 78665 ("Property"); and
WHEREAS,the City,the Districts,and ELMURR wish to enter into an agreement in which the
City and ELMURR may utilize the Districts' wastewater systems to provide wastewater service to the
Property on a pass-through basis,Now Therefore
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 an Agreement
for Pass-Through Wastewater Service with Siena Municipal Utility District No. 1, Siena Municipal
Utility District No. 2, and ELMURR LLC, 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 7th day of December, 2023.
4
CRAI OR AN, Mayor
City f Ro Rock, Texas
ATTEST:
MEAGAN SP KS, Clerk
0112.20232;4885-17354145
EXHIBIT
rrA„ District's Unique Control Number: 20231o18-7c
AGREEMENT FOR PASS-THROUGH WASTEWATER SERVICE
[LOT 3, BLOCK A,SIENA SECTION 351
THIS AGREEMENT FOR PASS-THROUGH WASTEWATER SERVICE [LOT 3,
BLOCK A, SIENA SECTION 351 (this"Agreement") is entered into effective as of the
Effective Date (defined below), by and among SIENA MUNICIPAL UTILITY DISTRICT
NO. 1, a political subdivision of the State of Texas operating under Chapters 49 and 54 of the
Texas Water Code ("District No. 1"), SIENA MUNICIPAL UTILITY DISTRICT NO. 2, a
political subdivision of the State of Texas operating under Chapters 49 and 54 of the Texas
Water Code ("District No, 2" and, collectively with District No. 1, the "D ri "), ELMURR,
LLC, a Texas limited liability company ("ELMURR"), and the CITY OF ROUND ROCK,
TEXAS, a home rule municipality located in Williamson County, Texas (the " "}. District
No. 1, District No. 2, ELMURR, and the City are sometimes referred to individually in this
Agreement as a"Par " and collectively as the"Parties".
RECITALS:
A. District No. i purchases and receives wholesale wastewater service from the City
pursuant to the Wholesale Wastewater Agreement dated June 27, 2013 between District No. 1
and the City (the "District No. 1 Wholesale Agreement"); and District No. 2 purchases and
receives wholesale wastewater service from the City pursuant to the Wholesale Wastewater
Agreement dated June 27, 2013 between District No. 2 and the City (the "District No. 2
Wholesale Agreement" and, collectively with the District No. i Wholesale Agreement, the
"Wholesale Agreements").
B. ELMURR is planning to develop Lot 3, Block A, SIENA SECTION 35, a subdivision
in Williamson County, Texas, according to the map or plat thereof recorded under Document
No. 2020046670(the"Property"), with an f9,307 square foot building,comprised of a"General
Retail" uses, as defined in the City's Code of Ordinances. The City has represented to ELMURR
that 6 living unit equivalents ("LUEs") of wastewater capacity in the City's wastewater system
are available for use by ELMURR to serve the Property. However, because the City does not
have existing wastewater lines in the area to which the Property could readily connect, ELMURR
has requested to use the Districts'wastewater systems on a pass-through basis in order to obtain
retail wastewater service from the City to the Property.
C. The Parties desire to enter into this Agreement to set forth the terms and
conditions on which the City and ELMURR may utilize the Districts' wastewater systems to
provide wastewater service to the Property on a pass-through basis.
AGREEMENT
For and in consideration of the mutual promises, covenants, obligations, and benefits of
this Agreement,the Parties contract and agree as follows:
Section 1. Recitals. The above and foregoing recitals are incorporated herein by
reference.
Section 2. Pass-Through Wastewater Service.
A. Authorization of Pass-Through Service. Subject to the terms and
conditions of this Agreement, the City may connect a wastewater line owned by
2023-412
ELMURR (the "ELMURR Wastewater Line") to the Districts' wastewater lines (the
"District Wastewater Lines") and wastewater collection systems at the point of
connection identified as the "Lot 3 Connection to Existing system" on Exhibit "A"
attached hereto (the "District Wastewater Point of Connection") to allow the City to
provide up to 6 LUEs of retail wastewater service to the Property using the Districts'
wastewater systems on a pass-through basis. The Districts have reviewed their current
capacity and have determined that they have the wastewater capacity to allow 6 LUEs of
wastewater to pass from the Property through their wastewater lines to the City's
wastewater system in accordance with this Agreement.
B. Limitations and other Conditions of Service.
1. Notwithstanding anything else in this Agreement to the contrary,
in no event will the City or ELMURR, without the prior written consent of the
Districts, deliver through the Districts' wastewater collection system more than 6
LUEs of wastewater from the Property measured at the District Wastewater Point
of Connection.
2. District No. 1 has and will continue to have its guaranteed
reservation and commitment of 2,556 LUEs of wastewater capacity from the City
under the District No. 1 Wholesale Agreement; and District No. 2 has and will
continue to have its guaranteed reservation and commitment of 2,556 LUEs of
wastewater capacity from the City under the District No. 2 Wholesale Agreement.
None of the LUEs of capacity guaranteed and reserved to the Districts under the
Wholesale Agreements will be utilized to serve the Property under this
Agreement. Instead, the City is committing 6 LUEs of wastewater capacity
directly to the Property and will simply be using the Districts'wastewater systems
to provide retail wastewater service to the Property on a pass-through basis.
3. To the extent that ELMURR desires to make improvements to the
Property that would impact wastewater generation, ELMURR will submit all
plans and specifications for such improvements to the Districts prior to
construction of such improvements so that the Districts may confirm that
wastewater generated from such improvements will not exceed the maximum
limits set forth in this Agreement. Each submission will include an engineer's
calculation of LUEs of wastewater service proposed and the peak wet weather
wastewater flows that will be generated by the improvements, and such
calculation will be subject to confirmation and approval by the Districts. Further,
within ten days after approval by the applicable governmental authority,
ELMURR will provide the Districts with copies of all approved site plans, and
amendments thereto. ELMURR will be solely responsible for the cost of any
infrastructure improvements to ELMURR's or the City's wastewater systems that
are necessary to enable the City to provide retail wastewater service to the
Property, including the ELMURR Wastewater Line from the Property to the
District Wastewater Point of Connection (the"ELMURR Wastewater Facilities")
and ELMURR will, at its sole cost and expense, operate and maintain the
ELMURR Wastewater Facilities in compliance with all applicable rules and
regulations; provided, however, that the ELMURR Wastewater Facilities may be
dedicated to the City,in which case the City will accept the ELMURR Wastewater
Facilities for operation and maintenance.
Agreement for Pass-Through Wastewater Service 2
4886-18874750,v.2
4. THE DISTRICTS WILL HAVE NO LIABILITY OF ANY
KIND OR NATURE WITH RESPECT TO THE ELMURR
WASTEWATER FACILITIES, AND DEVELOPER WILL INDEMNIFY,
DEFEND, AND HOLD THE DISTRICTS AND ITS DIRECTORS,
OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS, AND
REPRESENTATIVES HARMLESS FROM AND AGAINST ANY AND
ALL COSTS, DAMAGES, LIABILITIES (INCLUDING REASONABLE
ATTORNEYS' FEES AND COSTS OF LITIGATION), SUITS, ACTIONS,
LEGAL, OR ADMINISTRATIVE PROCEEDINGS, DEMANDS, FINES,
PUNITIVE DAMAGES, LOSSES, COSTS, OR CLAIMS OF ANY KIND
OR NATURE (COLLECTIVELY, "COSTS") THAT ARISE BECAUSE OF
OR IN CONNECTION WITH THE USE, OPERATION, OR
MAINTENANCE OF THE ELMURR WASTEWATER FACILITIES.
SUCH OBLIGATION APPLIES WHETHER ACTUAL OR ALLEGED
NEGLIGENT ACTS OR OMISSIONS OF THE DISTRICTS CAUSED THE
LOSS IN WHOLE OR IN PART; PROVIDED HOWEVER, IN THE
EVENT OF ANY JOINT OR CONCURRENT LIABILITY BETWEEN THE
DISTRICTS AND DEVELOPER, DEVELOPER'S OBLIGATIONS
HEREIN WILL BE REDUCED BY THE PERCENTAGE OF
NEGLIGENCE OR FAULT APPORTIONED TO THE DISTRICTS.
5. ELMURR and the City will be responsible for ensuring that all
discharges of industrial waste from the Property comply with federal, state, and
municipal requirements regarding pretreatment and monitoring of industrial
waste and other prohibited waste. Any compliance or enforcement efforts or
pretreatment requirements will be established and monitored by the City in
accordance with the City's ordinances; however, the Districts will be entitled to
inspect the facilities constructed to serve the Property and the connections at the
District Wastewater Point of Connection and to test the wastewater received at
the District Wastewater Point of Connection. If any test reflects that any
wastewater other than domestic wastewater is being received at the District
Wastewater Point of Connection, pretreatment of such wastewater will be
required, in accordance with the City's ordinances, at the expense of the
discharging party. The Districts will not have any obligations regarding the
required pretreatment of such wastewater. The City will not impose any fee,
charge, or fine upon the Districts for any violation of any ordinance, rule,
regulation, or agreement caused by wastewater received at the District
Wastewater Point of Connection, nor will the City impose upon the Districts any
surcharge that is caused by wastewater received at the District Wastewater Point
of Connection.
6. The 6 LUEs of wastewater service authorized under this
Agreement may only be used to provide wastewater service to ELMURR for the
Property. Except as expressly authorized by this Agreement for pass-through
wastewater service to the Property, neither ELMURR nor the City may connect,
or allow any other person or entity to connect, directly or indirectly, any other
facilities,persons,or property to the Districts'water or wastewater utility systems
without the prior written consent of the Districts. If ELMURR or the City does
so, the Districts may immediately terminate this Agreement and/or require
ELMURR or the City, as applicable, to immediately terminate service to the
facilities, persons, or property that have been connected in violation of this
Agreement for Pass-Through Wastewater Service 3
4886-1887-4750,v.2
Agreement. The Districts reserve the right to deny for any reason any request by
ELMURR or the City to increase the level of service under this Agreement or to
serve any other facilities,persons,or property.
C. Capacity Charge. For the 6 LUEs of pass-through wastewater service
capacity made available under this Agreement to the Property, ELMURR will pay a
non-refundable capacity charge of$3,485.25 to District No. i and $646.28 to District
No. 2 (collectively, the "Capacity Charges"). The Capacity Charges must be paid on or
before the Effective Date.
D. Operation & Maintenance Payment. The Districts will each invoice
ELMURR for a prorata portion of the costs of the operation and maintenance of the
District Wastewater Lines used to provide pass-through wastewater service to the
Property under this Agreement (the "Operation & Maintenance Payments"). The
Operation&Maintenance Payments will be allocated based on the ratio of the number of
LUEs of pass-through wastewater service capacity made available under this Agreement
to the Property (provided that such number will not include any LUEs for which the
Capacity Charges have been paid until such LUEs are actually being utilized)to the total
number of wastewater LUE capacity in the District Wastewater Lines, as set forth on
Exhibit"B" attached hereto(the"Prorata Allocation"). The Operation&Maintenance
Payments will be paid by ELMURR within 3o days after receipt of the invoice. The
Operation & Maintenance Payments will be in addition to any other payments required
by this Agreement. Interest charges for any overdue Operation & Maintenance
Payments will be paid by ELMURR in accordance with Texas Government Code Section
2251.025.
E. Debt Service Payment. On or before October Sin of each year during the
term of this Agreement through and including 2043, ELMURR will pay an annual fee of
$23 per LUE to District No. 1 and an annual fee of$4 per LUE to District No. 2 for the
debt service for the District Wastewater Lines used to provide pass-through wastewater
service to the Property under this Agreement(collectively,the"Debt Service Payments"),
except that any LUEs will not be factored into the Debt Service Payments until such
LUEs are actually being utilized. The Debt Service Payments are ELMURR's Prorata
Allocation of the debt service owed for the District Wastewater Lines. The amount of the
Debt Service Payments may be adjusted by the Districts annually to reflect the actual
debt service for the District Wastewater Lines, if such debt service changes; provided,
however,the Districts shall provide written notice to ELMURR of any adjustment at least
thirty days prior to the effective date of such adjustment. The Debt Service Payments
will be in addition to any other payments required by this Agreement. Interest charges
for any overdue Debt Service Payments will be paid by ELMURR in accordance with
Texas Government Code Section 2251.025.
F. Payment for Retail Service. The City will bill wastewater customers
within the Property directly for retail wastewater services furnished to such customers.
Section 3. Default. In the event of default by a Party, each nondefaulting Party may
give to the defaulting Party written notice of such default specifying the failure or default in
question. If the defaulting Party fails to fully cure the default specified in such notice within
thirty days after receipt of such notice,each nondefaulting Party will have the right to terminate
this Agreement as of the date of the event of the default and/or pursue all other legal or
equitable remedies. Each nondefaulting Party may employ attorneys to pursue its legal rights
and, if it prevails before any court or agency of competent jurisdiction, the defaulting Party will
Agreement for Pass-Through Wastewater Service 4
4886-1887-4750,v.2
be obligated to pay all expenses incurred by the nondefaulting Party, including reasonable
attorneys' fees. In addition to all other remedies available to the Districts, if, for any reason,
ELMURR or the City violates any provision of this Agreement, the Districts will, after the notice
and opportunity to cure period described above,have the right to disconnect the Property from
the Districts'systems and to terminate this Agreement if,in which event, ELMURR will be solely
responsible for all actual costs and standard District fees related to disconnection from the
Districts'systems.
Section 4. Severability. The provisions of this Agreement are severable, and if any
provision or part of this Agreement or the application thereof to any person or circumstance is
ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any
reason, the remainder of this Agreement and the application of such provision or part of this
Agreement to other persons or circumstances will not be affected thereby.
Section 5. Modification. This Agreement will be subject to change or modification
only with the mutual written consent of all Parties.
Section 6. Assignability. This Agreement may not be assigned by ELMURR or the
City, in whole or in part,without the prior written consent of the Districts. This Agreement will
be recorded in the Official Public Records of Williamson County, Texas, will run with the land
comprising the Property, and will be binding upon and inure to the benefit of the Parties, their
respective successors and permitted assigns, and all future owners or occupants of any portion
of the Property.
Section 7. Applicable Law. This Agreement will be governed by, and construed in
accordance with the laws of the State of Texas. All of the obligations contained in this
Agreement are performable in Williamson County,Texas.
Section 8. Parties at Interest. This Agreement will be for the sole and exclusive
benefit of the Parties hereto and will never be construed to confer any benefit to any third party.
Section q. Waiver. Each Party may specifically, but only in writing, waive any
breach of this Agreement by another Party, but no such waiver will be deemed to constitute a
waiver of similar or other breaches by such other Party.
Section io. Notices. All notices to the Districts will be in writing and mailed by
Certified Mail, Return Receipt Requested,addressed to:
Siena Municipal Utility District No. i
c/o Armbrust&Brown, PLLC
Attn: Kevin M. Flahive
ioo Congress Avenue,Suite 1300
Austin,Texas 78701
Siena Municipal Utility District No. 2
c/o Armbrust&Brown, PLLC
Attn: Kevin M. Flahive
ioo Congress Avenue,Suite 1300
Austin,Texas 78701
Agreement for Pass-Through Wastewater Service 5
4886-1887-4750,v.2
with copies to:
Armbrust&Brown,PLLC
Attn: Kevin M. Flahive
ioo Congress Avenue,Suite 1300
Austin,Texas 78701
All notices to ELMURR will be in writing and mailed by Certified Mail, Return Receipt
Requested,addressed to:
ELMURR,LLC
Attn: Nabil El Murr
380o Hidden Estates Drive
Austin,Texas 78727
All notices to the City will be in writing and mailed by Certified Mail, Return Receipt Requested,
addressed to:
City of Round Rock
Attn: City Manager
221 East Main Street
Round Rock,Texas 78664
with a copy to:
Sheets&Crossfield, P.L.L.C.
Attn: Stephanie L.Sandre
3og East Main Street
Round Rock,TX 78664
Any Party may change its address by giving written notice of such change to the other Parties.
Section 11. Term. This Agreement will be in force and effect for the term of the
Wholesale Agreements.
Section 12. Effective Date. The effective date of this Agreement (the "Effective
Date") will be the date that the latter of the Districts executes this Agreement after receipt of
fully executed original counterparts from ELMURR and the City.
Section 13. Multiple Originals. This Agreement may be executed in a number of
counterparts, each of which will for all purposes, be deemed to be an original, and all such
counterparts will together constitute and be one and the same instrument.
Section 14. Entire Agreement. This Agreement, including Exhibits,constitutes the
entire agreement of the Parties and supersedes all prior agreements and understandings related
to the subject matter hereof.
Section 15. Authority. Each Party represents and warrants that it has the full right,
power, and authority to execute this Agreement 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.
Agreement for Pass-Through Wastewater Service 6
4888-1887-4750,v 2
Section 16. IN WITNESS WHEREOF, the Parties have caused this Agreement to
be executed effective as of the Effective Date.
DISTRICT NO. 1:
SIENA CIP UT'
TY DISTRICT NO. 1
By: —
0 las Kue tler, P sident
rd of Directors
Date: October 18, 2021
THE STATE OF TEXAS §
COUNTY OF TRAVIS §
This instrument was acknowledged before me on the 18'h day of October, 2023, by
Douglas Kuenstler, President of the Board of Directors of Siena Municipal Utility District No. i,
on behalf of said District.
=+a!"�•°j?r.°: NotaryKEVlPubNc,Stale o. FLAf e`xa�s
" Notary ID#12978191-2
My Commission Expires Notary Public Signature
APRIL 11, 2026
Agreement for Pass-Through Wastewater Service 7
4886-1887-4750,v.2
DISTRICT NO. 2:
SIENA M CIPAL UTILITY DISTRICT NO.2
By: /
Adam Kruger,Vie President
Board of Directors
Date: October 18. 202�
THE STATE OF TEXAS §
COUNTY OF TRAVIS §
This instrument was acknowledged before me on the 18lb day of October, 2023,by Adam
Kruger, Vice President of the Board of Directors of Siena Municipal Utility District No. 2, on
behalf of said District.
KEVIN M:FLAHIVE
c= Notary PublicTexas Notary Pu lic Signature
Notary ID# 91-2jfl` My CommiiresAPRIL 6
Agreement for Pass-Through Wastewater Service 8
4886-1887-4750,v.2
ELMURR:
ELMURR, LLC,
a Texas limited liability company
By: ti x� ec rn w„u
Name: 1
Title: M A_NACb i N Ix ME 4�El1
Date: / 1 b6 /2wu 175
THE STATE OF TEXAS §
COUNTY OF §
This instrum nt was ac��o edged before me on the_01ay of AaW , 2023,
by L n of ELMU LLC, a Texas limited liability
company,on behalf of said limited liability compa
(seal)
'�v Q
6'
Victoria Nicole Saary lazar N blic nature
3.• Notary Public,State of Texas Cy
0
'Or 98-2
My NCOMMi Fair 1-W2024
Notary without Bond
Agreement for Pass-Through Wastewater Service 9
4886-1887-4750,v.2
CITY.
CITY OF ROUND ROCK,TEXAS
By:
Craig Morgan,Mayor
Date:
THE STATE OF TEXAS §
COUNTY OF.-.---_-.. §
This instrument was acknowledged before me on the day of , 2023,
by Craig Morgan, Mayor of the City of Round Rock,Texas,on behalf of said City.
(seal)
Notary Public Signature
Agreement for Pass-Through Wastewater Service 10
4886-1887-4750,v 2
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EXHIBIT"B"
PRORATA ALLOCATION
Siena MUD 1 W W Allocation for Siena Commercial Along CR 109
Segment MH iD Pipe Size Slope Unit Cost Siena Lues Total Costs
on? (°Al
Sect i Contract
12 0.5 Line A 695
Std MH 4 4,000.00 16000
Drop MH 1 4,900.00 4900
12'10-12'deep 616 37.00 22792
12'12.14'deep 51 62.00 3162
12'14-16'deep 50 68.00 3400
Connect to 6t 1 1.600.00 1800
Trench Safety 717 1 717
Adjust MH 5 100 S0o
53,271.00
Sect 3 Contract
8 0.5 Line F 11
SW MH 1 3.500.00 3500
8 04Y deep 150 32.00 4800
8'8-10'deep 100 34.00 3400
8'10-17 deep 100 39.00 3900
Connect to Ex 1 1,000.00 1000
Trench Safety 350 0.5 175
Adjust MH 1 100 100
16,875.00
Total Costs $70,146.00
Sect 3 Sect 1
Pro-Rated Coats 8'Line 12"Une Total Pro-Rated Costs
Lot 3 6 LUES $2,700.00 5443.0D $3,143.00
Total $3,143.00
Page 1 of 2
Agreement for Pass-Through Wastewater Service
4886-1887-4750,v.2
Developer InterestCalcuattions
Lot 3
Series 2018 Bonds 3.77% Costs Interest
Subtotal Section 1 Costs $443 00
Completed 10114
Assume 10123 dose 108 months 5150.12
Series 2019 Bands 3.3M Costs Interest
Subtotal Section 3 Costs $2.700 00
Completed 8/18
Assume 10123 dose 62 months $46125
Total Developer Interest 5611.37
Total Costs
Construction
Prorated share through Section 1 5443.00
Pro-rated share through Section 3 52,700.00
Engineering and Testing C 12%construction costs
Section 1 S5316
Section 3 5324.00
De-veluper Interest
Section 1 5150.12
Section 3 5461.25
Total Costs Per Section
Section 1 5646.28
Section 3 53,485.25
Total Cost for Pass-Through Service for Lot 3 54,131.53
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Agreement for Pass-Through Wastewater Service
4886-1887-4750 v 2