Res 023-96 2/20/1996RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
WICHITA FALLS, TEXAS, AUTHORIZING THE MAYOR TO
EXECUTE A PRISON EXPANSION AGREEMENT BY AND BETWEEN
THE CITY OF WICHITA FALLS, WICHITA COUNTY, THE
WICHITA FALLS BOARD OF COMMERCE AND INDUSTRY, AND THE
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; FINDING AND
DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION
WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW.
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 on behalf of the City of Wichita Falls an expansion
agreement by and between the City of Wichita Falls, Wichita
County, the Wichita Falls Board of Commerce and Industry and the
Texas Department of Criminal Justice, in accordance with the
terms and conditions of said agreement, 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 20th day of February, 1996.
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M A O R
ATTEST:
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City Clerk
EXPANSION AGREEMENT
JAMES V. ALLRED UNIT
THIS EXPANSION AGREEMENT (as amended or supplemented as herein provided,
the "Agreement") is made and entered into by and between WICHITA COUNTY, TEXAS
the "county"), a duly organized County of 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.
WITNFSSETH:
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; and,
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; and,
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 to the conditions herein set forth, the parties
hereto covenant, agree, and bind themselves as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.10 Interpretation: For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
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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.
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 Direction 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 furnished 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.
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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.
7) "Persons" 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 statuettes
and Constitution of the State.
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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 deliveryivY of this Agreementent
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 enforceable against 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.
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, this Agreement constitutes a
legal, valid, and binding agreement of the Corporation in accordance with its
terms.
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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 in
Section 2.01, the City's representations made in Section 2.02, and the Corporation's
representations made in Section 2.03, will be proper and suitable in carrying out the
Department's statutory powers and purposes.
ARTICLE THREE
OBLIGATIONS. REPRESENTATIONS AND WARRANTIES
OF THE COUNTY AND 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 and maintain a temporary construction road for
use during construction of the facility within 90 days notification by Department
of final site location or as specified by TDCJ. 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
minimum width of 18 feet.
2) the County agrees to provide an 18 to 24 feet wide permanent replacement
patrol road around the new high security facility, to be completed no later than
30 days before the projected final acceptance/completed construction of the high
security building or unless otherwise specified by the Department. Such road
would provide up to (1,500 feet for 1,000 bed and 1,400 feet for 2,250 bed)
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linear feet of replacement road at a minimum of 6 inch compacted sub-grade
with 4 inch flexible base and 1-1/2 inch asphalt paving.
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, connections, will be
provided at no cost to Department or any contractor/agent of the Department.
ARTICLE FOUR
V •J - V •
OF CITY OF WICHITA FALLS
SECTION 4.01 Potable Water and Sewer Facilities:
a) The City agrees to lay, install, provide and connect private meters and maintain
potable water and sanitary sewer lines to the pre-determined 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) Temporary water to Project construction site shall be provided by City
and shall be available within 90 days after receipt of written notification
of final site plan from Department to the site.
2) Permanent potable water line for tie-in to Project shall be available to the
site by 180 days after receipt of written notification of final site plan
from the Department to the site.
3) Permanent sanitary sewer line and lift station, if necessary, from Project
hooked into sewer plant and operational within 180 days after receipt of
written notification of final site plan from the Department to the site.
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4) For purposes of items (2) and (3) above, the final site plan must include
a designation of the easement access points to the Project site for
delivery of water and sewer service.
5) In no event shall the obligations of the city specified herein call for a
capital expenditure of more than $1.6 Million.
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 City of Wichita Falls, Texas; provided, however, such
increases may in any event be of such size or amount as necessary to meet any
requirements imposed by 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) Upon completion and acceptance of the expansion of the Allred Unit, 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
services shall be subject to the ordinances of the City as presently existing and
as may be hereinafter amended.
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 and electricity.
ARTICLE FIVE
OBLIGATIONS. REPRESENTATIONS AND WARRANTIES
OF THE DEPARTMENT
SECTION 5.01 Construction and Operation of the Project: 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
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to insure that the percentage of minority workers on this project are representative of the
make-up of the Wichita Falls population.
ARTICLE SIR
EFFECTIVE DATE OF AGREEMENT:
DURATION OF TERM
SECTION 6.01 Effective Date of Agreement: Duration of Term: This Agreement shall
become effective upon its execution and delivery and the rights and obligations created by this
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 without
further recourse by the Department. Termination of the contractor, however, will not result in
a waiver of any rights or remedies afforded the State from any breach of contract.
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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 and obtain possession of the Land
by any lawful means.
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.
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. Exhibits "A" and "B" provide a complete itemized listing of
these services and incentives, along with an estimated cost to provide each to the Department.
Estimated cost to be provided by each community).
SECTION 8.02 Bonds:, The City will post a Performance Bond (of amount equivalent to the
amount of its obligations) or provide a certified copy of the Ordinance appropriating the funds
specified in paragraph 4.01(a)(5). The Corporation will provide certificates of deposit or a
letter of credit to guarantee the community's commitments, except those of the City, specified
in this Agreement. 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 to the
site with the permanent utilities being tied-in to the compound through a central easement
corridor; construction road and patrol road. The City and Corporation will provide the
required instruments prior to the beginning of construction. The forfeiture of such instruments
is contingent upon the County, the City and the Corporation's failure to meet the requirements
of this Agreement on a timely basis. The instruments shall be released upon acceptance by the
Department of the completed work.
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)
294-6706].
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:
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If to Department to: If to County to:
Director, Administrative Services Division Nick Gipson, County Judge
New Administration Building Wichita County
P. O. Box 99 Wichita County Courthouse
Huntsville, Texas 77342-0099 Wichita Falls, Texas 76301
to City to: If to Co ration to:
City Manager Ron Mertens
City of Wichita Falls Board of Commerce and Industry
P. O. Box 1431 218 Hamilton Building
Wichita Falls, Texas 76307 Wichita Falls, Texas 76301
Each party may, by notice given under this Section 9.02, designate any further or different
addresses to which subsequent notices, certificates, requests or other communications shall be
sent.
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.
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, employees, or agent of the County or any successor, of the City or
any successor, of the Corporation or any successor, or of the Department or any successor,
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 herein 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.
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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 (i.e., no smoking on State property,
etc.)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective duly authorized Representatives on the day of
1996.
Wichita County, Texas City of Wichita Texas
440
By: By: i ,'
Nick Gipson Lames
County Judge Mayor
Attest: Attest:
By: By: 1 1 JItA )
Vernon Cannon y••ATorres
County Clerk City ! erk
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Texas Department of Wichita Falls Board of
Criminal Justice Commerce and Industry
By: By:
William C. McCray Ron Mertens
Director President
Admin. Services Division
Approved as to Form:
By:
Attorney (TDCJ)
EXHIBIT A
1. The cost of providing utilities extensions, meters and any
other related utility items will be borne by City of Wichita
Falls, Lone Star Gas, TU Electric, and Wichita Falls Board of
Commerce and Industry. In the event that Lone Star Gas
extensions exceed $20,000, the Board of Commerce and Industry
will provide the additional funds required.Cost for
modifications to the current wastewater treatment plant will
be borne by Wichita Falls.
2. Upon completion and acceptance of the expansion of the Allred
Unit, 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
services shall be subject to the ordinances of the City as
presently existing and as may be hereinafter amended.
3. City of Wichita Falls will furnish and install a garbage
grinder or "muffin monster" downstream of the Allred Unit on
the existing sanitary sewer line.
4. Wichita County will provide a temporary construction road to
the high security facility.
5. After construction, Wichita County will reconstruct the patrol
road around the new high security facility portion of the
Allred Unit.
6. Any relocation of utilities which may be required as part of
the proposed Allred high security building expansion, will be
done at no cost to TDCJ if said utilities are located outside
of the current Allred Unit fence.
EXHIBIT B
Gas 30,000
Electric 1,000
Roads 30,000
Water & Sewer - 1,600,000