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Res 102-98 7/7/1998RESOLUTION NO. I U -9F, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS AUTHORIZING THE MAYOR TO EXECUTE A CONTRACT WITH THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE; WICHITA COUNTY; AND THE WICHITA FALLS BOARD OF COMMERCE AND INDUSTRY PROVIDING FOR THE EXPANSION OF THE EXISTING JAMES B. ALLRED UNIT LOCATED WITHIN WICHITA COUNTY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF SAID CONTRACT; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPENED TO THE PUBLIC AS REQUIRED BY LAW. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS: Section 1. That the Mayor be and is hereby authorized to execute a contract with the Texas Department of Criminal Justice; The Wichita Falls Board of Commerce and Industry; and Wichita County for the expansion of the James B. Allred Unit located within Wichita County in accordance to the terms and conditions of said contract attached hereto and made a part hereof for all purposes. Section 2. It is hereby found and determined that the meeting at which this resolution was passed was open to the public as required by law. PASSED AND APPROVED this the 7th day of July, 1998. ` AYOR ATTEST: EXPANSION AGREEMENT WICHITA FALLS BOARD OF COMMERCE AND INDUSTRY THIS EXPANSION AGREEMENT (as amended or supplemented as herein provided, the "Agreement ") is made and entered into by and between the WICHITA COUNTY, TEXAS (the "County"), a duly organized County within the State of Texas, the CITY OF WICHITA FALLS (the "City"), a duly organized City within the State of Texas, the WICHITA FALLS BOARD OF COMMERCE AND INDUSTRY (the "Corporation "), a duly organized Texas Non -Profit Corporation, and the TEXAS DEPARTMENT OF CRIMINAL JUSTICE, together with any successor to its function, (the "Department "), which is an agency of the State of Texas. WITNESSETH: WHEREAS, the Department desires to build a high security facility as part of the existing James V. Allred Unit located within the County for detention, training, education, rehabilitation, and reformation of sentenced felons, capable of housing a population of a minimum 660 to a maximum 1,320 persons; WHEREAS, the County, the City, and the Corporation have made certain promises to the Department, including among other things. to provide certain utilities, and other incentives as described herein to the Department; WHEREAS, all things have been done which are necessary to authorize the execution of the Agreement and to constitute this Agreement a valid contract of the parties hereto in accordance with its terms: NOW, THEREFORE, for and in consideration of the premises and the_ mutual covenants hereinafter contained, and subject of the conditions herein set forth, the parties hereto covenant, agree, and bind themselves as follows: ARTICLE ONE DEFINITIONS SECTION 1.01. Interpretation: For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) Whenever used in this Agreement, the capitalized terms used in Section 1.02 have the meanings assigned to them therein. In each case, defined terms include the plural as well as the singular. Page 1 (b) All references in this instrument to designated "Articles ", "Sections, "Exhibits" and other subdivisions are to the designated Articles, Sections, Exhibits and other subdivisions of this instrument as originally executed. (c) The words "herein ", "hereof', and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Exhibit, or other subdivision. (d) The Agreement may contain references to documents, contracts, and other instruments that are not in existence on the date of execution hereof. When and as such instruments are prepared and are approved by the County, the City, the Corporation and the Department, the references herein to such instruments and to any capitalized terms used therein shall have the same effect as though such instruments existed on the date of execution hereof. SECTION 1.02. Definitions: (1) "Agreement" means this instrument, as originally executed or as it may from time to time be supplemented, modified or amended by one or more instruments supplemental hereto entered into in accordance with applicable provisions hereof. (2) "Authorized Representative of the County, the City, the Corporation and the Department" means: (i) with respect to the County, any Person designated in writing signed by the County Judge to act for and on behalf of the County; (ii) with respect to the City, any Person designated in writing signed by the presiding officer of the City's governing body to act for and on behalf of the City; (iii) with respect to the Corporation, any Person designated in writing signed by the presiding officer of Corporation's governing body; and (iv) with respect to the Department, the Executive Director, the Director of the Institutional Division or the Deputy Director designated in writing signed by Executive Director to act for and on behalf of the Department. The. specimen signature of the Person or Persons designated as Authorized Representative of the County, the City, the Corporation and the Department shall be contained in or be fiunished upon request of any party hereto. The designation of an Authorized Representative shall remain effective until a new written instrument is filed with or actual notice is given to the other parties that such designation has been revoked. (3) "Board" means the Texas Board of Criminal Justice. (4) "City" means the City of Wichita Falls. (5) "County Judge" means the duly elected and acting chief executive officer of Wichita County, Texas. (6) "Department" means the Texas Department of Criminal Justice. Page 2 (7) "Person" means any individual, corporation, partnership, joint venture, association, joint - stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof or any local government or subdivision thereof. (8) "Project" means the high security facility to be constructed and equipped on the Land. (9) "State" means the State of Texas. (10) "Term" means the duration of the Agreement as specified herein and shall include any extensions of the Term as provided herein. (11) "Utilities" means electricity, natural gas, potable water, sanitary sewer, solid waste disposal, telephone and TV cable. (12) "Footprint" means the unit compound area. (13) "Non- appropriation" means the failure of the legislature of the State to appropriate money for the construction or equipping of the project or the failure of the State to sell sufficient bonds to underwrite construction of the project. ARTICLE TWO REPRESENTATIONS AND FINDINGS SECTION 2.01. Representations of the County: The County makes the following representations as the basis for the undertakings on the part of the County herein contained: (a) The County is a duly organized County of the State of Texas under the statutes and Constitution of the State. (b) Pursuant to applicable law, the County has the requisite power to enter into this Agreement and to perform its obligations hereunder. (c) The County has duly authorized the execution and delivery of this Agreement and assuming due authorization, execution, and delivery by the City, the Corporation and the Department, this Agreement constitutes a legal, valid, and binding agreement of the County in accordance with its terms. SECTION 2.02. Representations of the City: The City makes the following representations as the basis for the undertakings on the part of the City herein contained: (a) The City is a duly organized City of the State under the statutes of the State of Texas Page 3 (b) Pursuant to applicable law, the City has the requisite power to enter into this Agreement and to perform its obligations hereunder. (c) The City has duly authorized the execution and delivery of this Agreement and assuming due authorization, execution, and delivery by the County, the Corporation and the Department, this Agreement constitutes a legal, valid, and binding agreement of the City in accordance with its terms. SECTION 2.03. Representations of the Corporation: The Corporation makes the following representations as the basis for the undertakings on the part of the Corporation herein contained: (a) The Corporation is a duly organized non - profit Corporation of the State under the statutes of that law. (b) Pursuant to applicable law, the Corporation has the requisite power to enter into this Agreement and to perform its obligations hereunder. (c) The Corporation has duly authorized the execution and delivery of the Agreement and assuming due authorization, execution, and delivery by the County, the Corporation, and the Department, the Agreement constitutes a legal, valid, and binding agreement of the Corporation in accordance with its terms SECTION 2.04. Representations of the Department: The Department makes the following representations as the basis for the undertakings on the part of the Department herein contained: (a) Pursuant to applicable law, the Department has the requisite power to enter into this Agreement and to perform its obligations hereunder and by proper Board action has been duly authorized to execute, deliver and perform this Agreement. (b) The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby or thereby, and the fulfillment of or compliance with the terms and conditions of.this Agreement, do not conflict with or result in a breach of the terms, conditions, or provisions of any restriction or any agreement or instrument to which the Department is now a party nor does it constitute a default under any of the foregoing. SECTION 2.05. Certain Findings of the Department: The Department hereby finds and determines that the Project, assuming the accuracy of the County's representations made Section 2.01, the City's representations made in Section 2.02, the Corporation's representations made in Section 2.03, will be proper and suitable in carrying out the Department's statutory powers and purposes. Page 4 ARTICLE THREE OBLIGATIONS, REPRESENTATIONS AND WARRANTIES OF THE CORPORATION SECTION 3.01. Roads Provided by County: The County agrees to provide at no cost to Department the following roads: (1) The County agrees to provide a chip and seal temporary construction road for use during construction of the facility. The Department will notify the County of when the road needs to be completed and of the final site location. Such road will be used for heavy construction traffic during construction of the facility, must be capable of withstanding heavy truck traffic during all weather conditions, and be a width of 24 feet. The TDCJ will clearly indicate where the road should be located. The contractor will be responsible for maintaining the temporary construction road. If requested, the County will assist in maintaining the temporary construction road. However, the contractor will bear all responsibilities for maintaining a serviceable temporary construction road. The estimated cost for this temporary construction road is not to exceed $100,000. (2) The TDCJ will require the contractor for the high security facility to bring the 24 foot wide permanent replacement road up to a compacted subgrade. This permanent replacement road will be located at the northwest corner of the Allred Unit around a portion of the new high security unit and will meet the existing concrete paved patrol road/access road located at the north and west side of the Allred Unit. The TDCJ will pave the permanent road with the County and Corporation agreeing to provide funds to TDCJ for the cost of the replacement road. The TDCJ has estimated the cost for this road at $162,000. SECTION 3.02. Incentives: The list of offered incentives subject to acceptance by the Department upon execution of this agreement, is attached hereto as Exhibit " A " and incorporated herein for all purposes. SECTION 3.03. Utility Contracts: When requested by the Department, the County, the City and the Corporation agree to assist and support the Department in negotiation of utility contracts for utilities not provided by a party or parties to this Agreement SECTION 3.04. Infrastructure: All infrastructure costs covered by this Agreement, including but not limited to, building permits, tap fees, meters, sub - meters, utility connections and back -flow preventers (if required by city code), will be provided at no cost to Department or any contractor /agent of the Department. Page 5 ARTICLE FOUR OBLIGATIONS, REPRESENTATIONS, AND WARRANTIES OF CITY OF WICHITA FALLS SECTION 4.01. Potable Water and.Sewer Utilities: (a) The City agrees, if required, to lay, install, provide and connect private meters, back - flow preventers (if required by city code), and maintain potable water and sanitary sewer lines to the predetermined points at the Project at no cost to the Department and to provide such potable water and sanitary sewer utilities to the Department in the quantities and flow rates as defined by the Department. The City further agrees to provide such services as follows: (1) If required, temporary water to the Project construction site will be provided by the City. (2) The Department plans on providing potable water through the existing system at the Allred Unit. However, if for some unforeseen reason potable water could not be provided through the existing system, the city agrees to provide potable water to the new high security facility. Such a request from the Department will need to be submitted in writing with a detailed explanation of why the existing system could not be used. (3) Permanent sanitary sewer line and necessary manholes from a point defined by TDCJ and hooked into the City sewer system and operational within 180 days after receipt of written notification of final site plan from the Department to the site. (4) For purposes of items (2) and (3) above, the final site plan must include the designated point -of connection for the City's water and sewer services. (5) In no event shall the obligations of the city specified herein call for a capital expenditure of more than $140,000. (6) The City will provide, if in the future it is determined necessary, additional elevated water storage. (b) The Department agrees to purchase potable water and sanitary sewer services from the City at the following rates beginning on the date the Department issues the Final Completion Certificate to its construction contractor indicating that the Project is complete. The contractor will pay the same rate as the Department. Future rate increases for potable water and sanitary sewer services provided to the Project will not exceed the rate increases charged customers located within the City limits of the Page 6 City of Wichita Falls, Texas; provided, however, such increase may in any event be of such size or amount as necessary to meet any requirements imposed by the applicable regulatory authorities to increase the size or capacity of the facilities used to provide the service. The Department shall pay monthly in arrears based on metered flow for water. (c) The City will furnish water, sewer and solid waste services to the prison facility at rates equal to 100% of the rates charged to users located within the city limits. Such rates will be a 50% reduction in the existing rates at the Allred Unit and will apply to the existing Allred Unit and the new high security facility. The City and TDCJ Utilities and Energy Department will coordinate when this rate will go into effect. However, this rate will not go into effect any later than the completion of the high security facility and occupancy thereof. (d) It is understood and agreed that until such time as the Department issues the Final Completion Certificate to the construction contractor, such construction contractor shall be responsible for payment of all utility charges, other than water, sewer and electricity. SECTION 4.02, Solid Waste: City agrees to collect and dispose of solid waste. The fee for such shall not exceed the rate charged to users located within the city limits. F-1 .1- Me W3 LTM SECTION 5.01. Construction and Operation of Projg t: The Department hereby affirms its obligation to employ due diligence until completion of the Project, to acquire, construct and equip the Project, or cause the Project to be acquired, constructed and equipped. The Department shall use due diligence to encourage the use of local contractors, subcontractors, and workforce materials, and supplies from the Wichita Falls area and make a concerted effort to insure that the percentage of minority workers on this project are representative of the makeup of the Wichita Falls area population. SECTION 6.01. Effective Date of Agmement; Duration of Term: This Agreement shall become effective upon its execution and delivery and the rights and obligations created by this Page 7 Agreement shall then begin and shall continue in full force and effect, unless terminated as hereinafter provided. ARTICLE SEVEN TERMINATION OF AGREEMENT SECTION 7.01. This Article Paramount: Notwithstanding any other provision of this Agreement, the provisions of this Article prevail over any other provisions hereof. SECTION 7.02. Payments: The payment of money under any provision of this Agreement by the Department whether to the County, the City, the Corporation or any other person for the construction and equipping of the Project is contingent upon the availability of funds appropriated by the State Legislature to the Department. (a) Neither the Department nor the State, its elected officials, officers, employees, agents, attorneys, or other individuals acting on behalf of the State, make any representations or warranty as to whether any appropriation will, from time to time during the Term of this Agreement, be made by the Legislature of the State or whether sufficient bonds will be sold to cover the costs of constructing and equipping the Project. SECTION 7.03. Termination: The milestones developed by the Department for each specific site will be adhered to, outlining when infrastructure requirements, roads, incentives and other critical requirements will need to be delivered or provided. The detailed implementation schedule will be considered in the development of these milestones. The Department will give the community written notice by certified mail of the breach of contract at least sixty (60) business days prior to any intended termination. If a breach of contract is not cured to the satisfaction of the Department within sixty (60) business days of the community's receipt of written notice of the intent to terminate, the State may deem the contract terminated. Termination of the contract, however, will not result in a waiver of any rights or remedies afforded the State from any breach of contract. SECTION 7.04. Non - Appropriation: Any provisions of this Agreement to the contrary notwithstanding, in the event of a Non - Appropriation, the sole remedy for the County, the City and the Corporation shall be to cancel this Agreement. SECTION 7.05. Notice of a Non - Appropriation: Not less than five (5) business days following a Non - Appropriation, the Department shall give notice of such occurrence to the County, the City and the Corporation. Page 8 ARTICLE EIGHT MISCELLANEOUS SECTION 8.01. Amount of Obligations: The Department selected Wichita Falls as a site for the high security facility based upon their obligations to provide certain services and incentives to the Department at no cost. Exhibit A provides a listing of these incentives. SECTION 8.02. Bonds: The City will provide a certified copy of the Ordinance appropriating the funds specified in paragraph 4.01(a)(5). The county will provide a certified copy of the court order appropriating the funds as specified in paragraph 3.01 (1 and 2). The amount of the obligations will include all necessary provisions for the community to provide all infrastructure needs and any other item addressed in this Agreement to include: the community's obligations to bring both temporary and permanent utilities that have been identified to the site and the construction road and provide funds to reconstruct the patrol road. SECTION 8.03. Easements: Any easements (utility or other) will be coordinated with the Department's Director of Land and Minerals at P.O. Box 99, Huntsville, Texas 77340 (409/436- 4044). SECTION 8.04. Notices: All notices, certificates, requests or other communications hereunder shall be sufficiently given and shall be deemed given when mailed by first class mail (except as otherwise specified herein), postage prepaid, addressed as follows: If to Department: Director, Financial Services Division New Administration Building P.O. Box 99 Huntsville, Texas 77342 -0099 If to City: City Manager City of Wichita Falls P.O. Box 1431 Wichita Falls, Texas 76307 If to County: Nick Gipson, County Judge Wichita County Wichita County Courthouse Wichita Falls, Texas 76031. If to Corporation: Ron Mertens Board of Commerce and Industry 218 Hamilton Building Wichita Falls, Texas 76301 SECTION 8.05. Amendments to Agreement: The County, the City, the Corporation and the Department may from time to time enter into one or more amendments or supplements to this Agreement which such amendments or supplements shall be reduced to writing and signed by the parties hereto. No such amendment or supplement shall be binding and effective unless so written and signed by the parties hereto. Page 9 SECTION 8.06. Officers, Employees, and Agents of the County, the City, the Corporation and the Department Exempt from Personal Liability: This Agreement is a solely limited obligation of the County, the City, the Corporation and the Department and no recourse under or upon any obligation, covenant or agreement of this Agreement, or for any claim based hereon or thereon, or otherwise in respect hereof, shall be had personally against any past, present or future officer, employee, or agent of the County, of the City or any successor, or of the Corporation or any successor or of the Department, whether by virtue of any constitution, statute, or rule of law, by the enforcement of any assignment or penalty, or otherwise. All such liability and claims against such persons individually are expressly waived by the parties hereto as a condition of, and in consideration for, the execution and delivery of this Agreement. SECTION 8.07. Counterparts: This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts. SECTION 8.08. Headings: The County, the City, the Corporation and the Department agree that the headings used in this Agreement are for the convenience of reference only and shall not constitute a part hereof or affect the construction or interpretation hereof. SECTION 8.09. Severability: If any clause, provision, or section of this Agreement shall be held illegal, invalid, or unenforceable by any court, the illegality, invalidity, or unenforceability of each clause, provision, or section shall not affect any of the remaining clauses, provisions, or sections hereof, and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable clause, provision, or section had not been contained herein. In case any agreement or obligation contained in this Agreement be held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of the County, the City, the Corporation or the Department, as the case may be, to the full extent permitted by law. SECTION 8.10. Laws of Texas to Govern: The laws of the State of Texas shall govern the construction and enforcement of this Agreement and any suit, whether at law or in equity shall be brought only in the District Courts of the State. SECTION 8.11. Working on State Property: Any entity working on the Department's property must adhere to all TDCJ rules -and regulations. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective duly Authorized Representatives on the _ day of '19 WICHITA COUNTY, TEXAS Nick Gipson County Judge Page 10 CITY OF WICHITA FALLS, TEXAS �I HY� c G Kathryn . Yeager Mayor % ATTEST: ATTEST: By: By: Vernon Cannon Ly a Torres County Clerk CitV Clerk TEXAS DEPARTMENT OF WICHITA FALLS BOARD OF CRIMINAL JUSTICE COMMERCE AND INDUSTRY By: By: David McNutt Ron Mertens Director for Financial Division President APPROVED AS TO FORM: Attorney (TDCJ) Page 11 WICHITA FALLS High Security Facility 1. City of Wichita Falls will either annex the Allred Unit which will reduce water, wastewater and solid waste rates by 50% for both the Allred Unit and the new high security facility or by special agreement accomplish this reduction. 2. City of Wichita Falls has furnished and installed a garbage grinder or "muffin monster" at no cost to TDCJ. 3. Wichita County will provide a chip and seal temporary construction road as indicated on the construction contract documents to the high security facility. TDCJ will stake where the road needs to be constructed from Reilly Road to the unit. 4. Wichita County will provide funds for TDCJ to reconstruct the concrete patrol road around the new high security facility portion of the Allred Unit. TDCJ will need to provide cost estimate to the County for the reconstruction of the patrol road. 5. The Department plans on providing potable water through the existing system at the Allred Unit. However, if required, the City of Wichita Falls will extend down Reilly Road and to the new high security facility a water line and provide a separate meter. TDCJ would define the point where they want the water line brought to. TDCJ would need to interconnect the water line off Reilly Road to the existing TDCJ internal waterline loop so that there would be a two -way water feed to the Allred Unit in case of an interruption in service. Such a request from TDCJ will need to be submitted in writing with a detailed explanation of why the existing system could not be used. 6. The cost of providing any required or agreed upon utility extensions, meters and any other related items will be bome by the City of Wichita Falls, Lone Star Gas,,and TU Electric. 7. The City will work with TDCJ if wastewater discharges are not of BOD, TSS and FOG compliance to bring TDCJ into compliance rather than assess surcharges. 8. The City will furnish and install wastewater lines and manholes from the point, elevation, and in the size indicated on the construction contract documents including the tie -in to the city line. 9. If the current method used by the Allred Unit to get rid of some food waste is discontinued (slop to hog farms), the City of Wichita Falls is willing to work with TDCJ in utilizing the city composting pile. 10. If TDCJ needs additional water storage, the City of Wichita Falls would provide it at no cost to TDCJ. 11. TU Electric will furnish all poles, transformers, conductors, meters and other necessary items to provide temporary electric services as indicated on the construction contract documents for the construction period.