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Res 046-82 3/2/1982N RESOLUTION NO. RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH DEVELOPERS, FRED STEPHENS AND JOE JOHNSON, OWNERS OF THE ATRIUM, FOR PUBLIC SIDEWALK IMPROVEMENT. WHEREAS, the approved 1981-1982 Community Development Block Grant Application established a sidewalk leveraging program designed as an incentive to encourage redevelopment of the central business area; and WHEREAS, a prerequisite of the sidewalk leveraging program is that the applicant expend six dollars ($6.00) for improvement for each City contri- bution of one dollar ($1.00) for public improvement in an amount not to exceed twenty thousand dollars ($20,000) per block face; and WHEREAS, the applicant has documented expenditures for improvement greater than the required minimum for two block faces; and WHEREAS, pursuant to said application the City desires to cooperate with the Developer in making certain sidewalk improvements abutting Lots 1, 8, 9, 10, 12, 13 and 14, Block 150, Original Townsite, in connection with the development of The Atrium. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF WICHITA FALLS, TEXAS, THAT: The City Manager is authorized to execute an Agreement, a copy of which is attached hereto, with Fred Stephens and Joe Johnson, owners of The Atrium, for the improvement of public sidewalks as legally described in the Agreement and for an amount, to be contributed by the City, not to exceed forty thousand dollars 40,000) . j"/ PASSED AND APPROVED THIS THE eeday of i// 2/1982. ATTEST: MAYOR y CITY CLERK Page 11 of 11 Pages Agenda Item No. CITY OF WICHITA FALLS, TEXAS PUBLIC AREA IMPROVEMENT PART I AGREEMENT THIS AGREEMENT, MADE AND ENTERED INTO THIS day of 1982, by and between the City of Wichita Falls, a municipal corporation located in the County of Wichita and State of Texas (hereinafter referred to as "City"), and Fred Stephens and Joe Johnson, owners of The Atrium (hereinafter referred to as "Developer"). WITNESSETH WHEREAS, the City of Wichita Falls included in its 1981-1982 Community Development Block Grant (CDBG) Application a Sidewalk Leveraging Program designed to encourage reconstruction of public sidewalk facilities in a manner and design consistent with City plans and to encourage new construction and renovation of existing privately-owned facilities, with such efforts to enhance the City's tax base and midtown revitalization plans; and, WHEREAS, a prerequisite of the Sidewalk Leveraging Program is that the applicant expend a minimum of six dollars ($6.00) for private improvements for each City contribution of one dollar ($1.00) for public sidewalk improvements in an amount not to exceed twenty thousand dollars ($20,000.00) per block face. NOW, THEREFORE, the City and Developer mutually agree as follows: 1. Scope of Services A. City agrees to perform the activities consistent with the approved 1981-1982 CDBG Application to include financial participation in payment of materials only in the public sidewalk and aesthetic improvements abutting Lot 1, 8, 9, 10, 11, 12, 13 and 14, Block 150, Original Townsite. Such improvements are subject to all applicable laws, program regulations and the Grant Agreement between the City and the U.S. Department of Housing and Urban Development (HUD) . Page 2 of 11 Pages Agenda Item No. 2- B. Developer agrees to cause the public sidewalk abutting Lots 1, 8, 9, 10, 11, 12, 13 and 14, Block 150, Original Townsite, in connection with the development of The Atrium to be performed in accordance with the attached site plans and specifications prepared therefor by Dahl, Bordon, Chapman, Inc. Developer further agrees to expend funds in an amount equal to at least six (6) times the compensation to be paid to Developer by City as provided in Paragraph 3. Compensation; such Developer expenditures shall be for private improvements associated with The Atrium. 2. Time of Performance. The Developer's performance of this Agreement shall commence as soon as practicable after the execution of this contract and shall be undertaken in the light of the purposes of this contract; but, in any event, this contract shall terminate on September 30, 1982. No payments shall be made by the City to the Developer for work required herein but uncompleted by the aforementioned date. 3. Compensation. The City agrees to pay to the Developer a maximum amount of Forty Thousand Dollars ($40,000.00) at a 6:1 ratio of cost incurred by the Developer, in connection with the entire Atrium Project, which shall constitute full and complete compensation for City's obligation under this contract. 4. Method of Payment. Payment shall be made for materials only and in one payment on a reimbursable basis only after documented evidence has been presented to the City that required public and private improvements have been made and the required six-to-one ratio has been satisfied. 5. Contractor's Contribution. In the event that the total sum paid to the Developer under the terms of this Agreement is not sufficient for the Developer to continue performance of his obligations hereunder until termination date hereof, Developer shall provide sufficient funds, whether from its own or other non-City sources, for continued performance to fulfill the terms of this contract. 6. Terms and Conditions and Labor Standard Provisions. This agreement Page 3 of 11 Pages Agenda Item No. 3- is subject to and incorporates the provisions attached hereto as "Part II - Terms and Conditions." 7. Future Funding. The funding of this Agreement in no way commits the City to future funding beyond this Agreement. Any future funding is solely the responsibility of the Developer. IN WITNESS WHEREOF, the City and the owners, Fred Stephens and Joe Johnson, have hereunto set our hands on the day of 1982. CITY OF WICHITA FALLS BY: Stuart A. Bach, City Manager DEVELOPER OF "THE ATRIUM" BY: OWNER BY: OWNER ATTEST: Wilma J. Thomas, City Clerk APPROVED AS TO LEGALITY AND FORM: H. P. Hodge, Jr. , City Attorney Page 4 of 11 Pages Agenda Item No. PART II TERMS AND CONDITIONS 1. Restriction on Disbursement. No money under this Agreement shall be disbursed by the Developer to any other contractor except pursuant to a written agreement which incorporates the applicable Supplemental General Conditions and unless the contractor is in compliance with requirements with regard to accounting and fiscal matters to the extent applicable. 2. Termination of Contract for Cause. If, through any cause, the Developer shall fail to fulfill in timely and proper manner his obligations under this Agreement, or if the Developer shall violate any of the covenants, agreements or stipulations of this Agreement, the City shall thereupon have the right to terminate this Agreement by giving written notice to the Developer of such termina- tion and specifying the effective date thereof, at least thirty (30) days before the effective date of termination. In such event, all finished or unfinished documents, data, surveys, drawings, maps, models, photographs, and reports prepared by the Developer under this Agreement shall, at the option of the City, become its property, and the Developer shall be entitled to receive just and equitable compensa- tion for any work satisfactorily completed hereunder. Notwithstanding the above, the Developer shall not be relieved of the liability to the City for damages sustained by the City by virtue of any breach of the contract by the Developer, and the City may withhold any payments to the Developer as determined. 3. Termination for Convenience of City. The City may terminate the Agreement at any time by giving at least thirty (30) days notice in writing to the Developer. If the Agreement is terminated by the City as provided herein, the Developer will be paid an amount which bears the same ratio to the total compensation as the services actually performed bears to the total services of the Developer covered by this Agreement, less payments of compensation previously made. 4. Assignability. The Developer shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment Page 5 of 11 Pages Agenda Item No. or novation) without the prior written consent of the City thereto: PROVIDED, HOWEVER, that claims for money due or to become due to the Developer from the City under this Agreement may be assigned to a bank, trust company, or other financial institution without such approval. Notice of any such assignment or transfer shall be furnished promptly to the City. 5. Records. a. Establishment and Maintenance of Records. The Developer shall establish and maintain records in accord(nce with requirements prescribed by the City, with respect to all matters covered by this Agreement. Except as otherwise authorized by the City, the Developer shall retain such records for a period of three years after receipt of the final payment under this Agreement or termination of this Agreement. b. Documentation of Costs. All costs shall be supported by properly executed invoices and/or any other accounting documents pertaining in whole or in part to this Agreement and shall be clearly identified and readily accessible. c. Reports and Information. The Developer at such time and in such forms as the City may require, shall furnish to the City such statements, records, reports, data and information as the City may request pertaining to matters covered by this Agreement. d. Audits and Inspections. The Developer shall at any time during normal business hours and as often as the City may deem necessary, make available to the City for examination all of its records and data with respect to all matters covered by this Agreement, and shall permit the City or its designated authorized representative to audit and inspect all invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. e. Additional Requirements. Unearned payments under this Agreement may be suspended or terminated upon refusal to accept any reasonable additional condition that may be imposed by the City at any time. Page 6 of 11 Pages Agenda Item No. 6. Eligible and Ineligible Costs. a. Standards. All costs incurred must be reasonable and of a nature which clearly relates to the specific purposes and end product of the Agreement under which the services are being performed. Care must be exercised by all con- cerned in incurring costs to assure that expenditures conform to these general standards and the following criteria for eligibility of costs. b. Eligible Costs. To be eligible for inclusion under this Agreement costs must: 1) Be necessary and reasonable for proper and efficient execution of the contractual requirements. 2) Be in conformance with any limitations or exclusions in these instructions, or other governing limitations. 3) Be no more liberal than policies, procedures and practices applied uniformly to both federally assisted and other activities of the City. 4) Be accorded consistent treatment through application of accounting policy and procedures approved and/or prescribed herein. 5) Be net of all applicable credits such as purchase discounts, rebates or allowances, sales of publications or materials, or other income or refunds. 6) Be in accordance with budgetary or other restriction of expense established by City. 7) Be fully documented. 8) Comply with policies governing administrative practices, including policies with respect to employment, salary and wage rates (current Davis- Bacon Wage Decision) , working hours, holidays, fringe benefits (health and hospitali- zation, retirement, etc.) , vacation and sick leave privileges, and travel. c. Ineligible Costs. In addition to costs ineligible under the above criteria, the following costs are specifically ineligible: 1) Bad Debt. Any losses arising from uncollectable accounts and other claims and related costs. Page 7 of 11 Pages Agenda Item No. 2) Contingencies. Contributions to a contingency reserve or any similar provision for unforeseen events. 3) Fines and Penalties. Costs resulting from violations of or failure to comply with federal, state, and local laws and regulations. 4) Contributions and Donations. 5) Interest and Other Financial Costs. Interest on borrowing however represented) , bond discounts, cost of financing and refinancing options and legal and professional fees paid in connection therewith. 7. Interest of Members of CitJ No member of the governing body of the City, and no other office, employee, or agent of the City shall have any personal financial interest, direct or indire-t_, in this Agreement; and the Developer shall take appropriate steps to assure compliance. 8. Compliance with Local Laws. The Developer shall comply with applicable laws, ordinances, and codes of the State and local governments, and the Developer shall save the City harmless with respect to damages arising from any tort done in performing any of the work embraced by this Contract. 9. Civil Rights Act of 1964. The Developer will carry out its work under this Agreement in a manner which will permit full compliance with Title VI of the Civil Rights Act of 1964, as amended, so that no person shall, on the grounds of age, race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving financial assistance. 10. Political Activity Prohibited. None of the funds, materials, property, or services provided directly or indirectly under this Agreement shall be used in the performance of this Agreement for any partisan political activity. 11. Lobbying Prohibited. None of the funds provided under this Agreement shall be used for publicity or propaganda purposes designed to support or defeat United States Congress, the Texas State Legislaturelegislationpendingbeforethegg or the Board of Aldermen of the City of Wichita Falls, Texas. Page 8 of 11 Pages Agenda Item No. 12. Equal Employment Opportunity. During the performance of this Agree- ment, the Developer agrees as follows: a. The Developer will not discriminate against any employee or appli- cant for employment because of age, race color, religion, sex, or national origin. The Developer will take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their age, race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other terms of compensation; and selection for training, including apprenticeship. The Developer agrees to post in conspicuous places available to all employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. b. The Developer will, in all solicitations or advertisements for employees placed by or on behalf of the Developer, state that all qualified appli- cations will receive consideration for employment without regard to age, race, color, religion, sex, or national origin. c. The Developer will send to each Labor Union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the commitments under this section, and shall post copies of the notice in conspicuous places available to the employees and applicants for employment. d. In the event of the Developer's noncompliance with the nondiscrimina- tion clauses of this Agreement or with any of the said rules, regulations or orders, this Agreement may be cancelled, terminated, or suspended in whole or in part, and the Developer may be declared ineligible for further contracts. e. The Developer will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement so that such provisions will be binding upon each subcontractor, provided that the foregoing provisions shall not apply to contracts or subcontracts for standard commercial supplies or raw Page 9 of 11 Pages materials. Agenda Item No. 13. Non-Segregated Facilities. The Developer certifies that he does not maintain or provide for his employees any segregated facilities at any of his establishments, and that he does not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. The Developer covenants that he will not maintain or provide for his employees any segregated facilities at any of his establishments, and that he will not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. As used in this paragraph, the term "segregated facilities" means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, time clock, locker room and other storage or dressing areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are in effect segregated on the basis of age, race, color, creed, or national origin, because of habit, local custom, or otherwise. Page 10 of 11 Pages Agenda Item No.