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Res 069-2007 5/1/2007 . , RESOLUTION NO. ��DO`7 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, TO APPROVE ADVANCE FUNDING AGREEMENT FOR THE INTERSECTION IMPROVEMENTS WITH WAL-MART STORES; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, the Wal-Mart Stores Texas, LP, has proposed intersection improvements, including a traffic signal at Southwest Parkway and Greenbriar Drive; and WHEREAS, the City will act as the funding avenue befinreen Wal-Mart and the Texas Department of Transportation; and WHEREAS, this funding agreement with Wal-Mart will provide this funding. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: SECTION 1. The Advance Funding Agreement is accepted and the City Manager is hereby authorized to execute said agreement with the Wal-Mart Stores Texas, LP. SECTION 2. It is hereby officially 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 2nd day of May, 2007. MAYOR ATTEST: yCerk w;�n�� F�u�, Tx Store No. 414-04 AGREEMENT FOR FUNDING OF INTERSECTION IMPROVEMENTS THIS AGREEMENT FOR FIJNDING OF WTERSECT'ION IMPROVEMENTS (tbe "Agr�ement") is made and eatered into on , 2007, by and between WAir MART STORES TEXA,S, LP, a Texas limited perinemhip ("Wal-Mart"), and the CITY OF WICHITA FALLS, TEXAS, a Texas municipal corporation (the "City"). WHEREAS, Wal-Mart has acyuired fee title to approximately 35.121 acres of real property in Wichita Falls, Texas for the purpose of constructing a Wal-Mart store and facility on such property ("Wal-Mart Property"); and WHEREAS, Wal-Mart desires the installation of intersection improvcments at Southwest Parkway sad tho secondary entrance to t3�e Wa3-Mart Store in the City of Wichita Falls, Texas, to faciliffite safe and orderly ingress to and egress from the Wal-Mart store; and WI�E�REAS, Wal-Mart has baen negotiating wi� �e Texas Deparhneat of Transportation ("TXDOT') to construct and maintain the intersection improvements (the "Project"); and WHEREAS, T3�OT is willing to construct and maintain the Project, but TXDOT has required aa sdvaace funding agreement between t6e C7ty and T?sDOT whereby the City will be required to provide funding to TXDOT for the estimated cost of thc Project; snd WHEREAS, City bas entered into the advanoe funding agreement with TXDOT as required by TJ�OT; and WHEREAS, Wal-Mart has agreed to reimburse the City for its portion of desigp fees and other expenditures related to the Project in an estimated amount equal to $168,316.49 (the "Project Funds"). NOW, THEREFORE, in consideration of We mwual obligations, covenants and agreements set forth herein, the City and Wal-Mart agree as follows: l. Upon execution of this Agreement by the perties, Wal-Mart shall deposit Project Fimds with the City, which Project Funds represent the estimated cost for completion of the Project. The City shall execute �e Local Project Advsace Flmding Agreement For Voluntary Local Government Coahibutions to Transportation Improvement Projects With No Required Match with TXDOT for the Project, said agreement to be in the form atiached hereto as Exhibit A and incorporated herein for all pw�poses ("Advance Funding Agreement"). 2. Wal-Mart hereby agrees to assume and pay the Project Funds auributable to the • Project under the teTms aad conditions provided hereia. As furtber described in the Advance Funding Agreement, the estimated cost of the Project ciurently equals the total Projeet F�mds; however, this is e construction estunate only, and finnl participation amounts payable by Wal- Mart will be based on the actual charges by TXDOT fa the Projed as completed. 3. In consideretion therefor, the City agrees w maintain the Project Funds advanced by wal-Mart in a separate acconnt, ana to pay such funds to T3mOT upoa danana by T3�OT for the Project piasusnt to the Advance Funding A�amu►t. a In the eve�t tbe actual charges �r the completed Projed at�e less than the Project �lmds submitted by Wa]-Mart, upon rchun of such excess fimds to the City by TXDOT, the City agrees to promptly return sach access Projax �nds to Wa3-Mart. b. In the eveut tbe acc;tuual charges f� the completad Project are more than the Projcct Funds, the City shall be respons�ble for payment of such sddidonal fimds to TXDOT within the time provided in the Advance flmding Agneement. In addition, the G�ty shall immediately provide wririen notification thereof to Wal-Mart, togcthcr with an iteanized smtemmt and an explanation of increased costs rdating to the Project Within thirh+ (3U) days following written request therefior, Wal-Mart agree�s to pay such edditional conahvction costs to City, provided such additional costs do not excced forty percent (40'�6) of the Projed Funds. If t�c City has alnady paid TXDOT such addirional conshvction costs, the City shall kap the funds received from Wal-Mert as reimbiusement If the City has not already paid T3�OT such additional const�ruction costs, the City will P�mP�Y Pay w TJ�OT t�e fm�ds received from Wal-Mart within the time provided in the Advance Fmding Agreeanemt. 4. Tbe City and Wai-Mart shail do ell things necessary or apPropriate to carry out the terms aad provisions of ttus Agrcemcnt and to sid end assist each other in carrying out the tams and provisions. The City agras to immediately defiver to Wal-Mart aIl notioes received by the City under the Advance Hlmding Agreement 5. Scaion or other headings �ntained in �is Agecmeut arc for reference purposes only and shall not affect in any way the meaning or intecpretation ofthis Agrxment 6. In the event any legal action or proass is commcncod to enforce or interpret provisions of this A�eement, the prevailing party in �y suc� legal action shall bc cntitled to recover its naxssary and reasonable attorneys' fees and expenses ine�ttred by reason of such action. 7. This Ageernent contains the entire ageeanent betwe.en the parties with rGS�C.K to the transaction co�emplated hcrein. S. This Agrcernent may only be amended, altaed, or revokcd by writien instcvment ���a by the ciry �na wa�-�c. 9. 3'his Agreanent sha11 be binding on and irnire to tfie beae5t of the parties, their respective succassors and assigns. 10. Any ao6ce andlor statement requirod and permitte� to be delivered shell be deaned dclivaed by de�wsiting same with a recog�ized ovwnighf debvery service, or in t�e United States mail, certified with return receipt requGSted. P��Se PTCP�d+ addressed to ti�e appropriate party at the following addresses, or at such other addresses provided by the parties in writing. Wal-Mart: Wal-Mart Stores Texas, LP 2A01 S.E. lOth S�cet Bentonville, AR 72716-OS50 Attention: Legal De�hnent — Texss Referes�ce: Store No. �414-04 With copies to: Wal-Mart Stores Texss, LP Attention: Realty Manager - Texas 2001 S.E. lOth Street Bentonvlle, AR 72716-0550 Refeaence: Store No. #414-04 Haynes and Boone, LLP Attention: Susan A. Huddleston, Esq. 901 Main Strezt, Suite 3100 Dallas, Texas 752A2 Reference: Store No. #414-04 CITY: City of Wichita Falis, Texas Darron Leiker, G`ity Menaga 1300 7th St. VJichiffi Falls, Texas 76301 Notices shal] be e$ective upon receipt or refi�sal. 11. This Agee,meat is made, and shall be construed an@ interpreted under the laws of the State of Texas and venue shall lie in VJichita County, Texas. 12. In the event any provision of this Ageemeat is illegal, invalad, or unenforceable under present or firtiue laws, ttien, and in that event, it is the intention of the parti� hez'eto that th� rcmainder of this ABeement shal] not be affected #hereby, and it is aiso the intention of the parties to this Agreanent ti�at in lieu of each clause or provision that is found to be illegal, invalid, or unenforceable a provision be added to this Agraeanent which is legal, valid end enforceeble and is es eimilar in terms as possible to the provision found to be illegal, invalid or uneuforceabla 13. This Agrecment may be executed ir► multiple countaparts, each of which shal] be considered aa origmal, but alf of whirh shall constifirte one inshum�t A telecopied facsimile of a duly acecuted counteipa�t to this Agreeme�t shatl be suf�ciem to evidence the binding agreeanent of each party to the tums hcrein. Howeva, the partics cach agrce to promptly retzirn an original, dnly executed counterpart of this Ag��eement following the delivery of a telccopied facsimile hereof. ] 4. Nothing contained in this Agre�ment is intended by the parties to c�'eate a pmtnership or joi� vea�ture betwe� the parties. [Signstnre Pages to Follow) WAL-MART STORES, TEXAS, LP, a Texes limited partnership �proved a� legal terms oniy BY. /'� � �L� WAL-MART E L DEPT Name: G'1.,�, Q � Date: • �� Tide: � � CIT'Y OF WICHITA FALLS, TEXAS, BY .-: :1•:•:•:•:•:�; Its: City ManaSei' . . . . . . . . . . . Exhibit A— Advance Funding qgreanent CSI # �]w►-QS-0O] District # Wichita Falls Codc Chart 64 # 4b05� Projcct: R1yC 6160-95-001 THE STATE OF TEXAS § THE COUNTY OF WICHITA § LOCAL PROJECT ADVANCE FUNDING AGREEMENT FOR VOLUNTARY LOCAL GOVERNMENT CONTRIBUTIONS TO TRANSPORTATION IMPROVEMEI�iT PROJECTS WITH NO REQUIRED MATCH THIS AGREEMENT IS MADE BY AND BETWEEN the State of Texas, acting through the Texas Department of Transportation, hereinafter called the State, and thP �iiv r�f �chita Falls acting by and through j� dulv elected officials. hereinafter called the Loral GovemmenL WITNESSETH WHEREAS, Texas Transportation Code, Chapter 201 and 222 authorizes the State to lay out, construd, maintain, and operate a system of streets, roads, and highways that comprise the State Highway System; and, WHEREAS, Texas Govemmerrt Code Chapter 791 and Texas Trensportation Code §201.209 and Chapter 229, authorizes the State to contraG with murMCipalfies and political subdivisions; and, WHEREAS, the Local Govemment has requested that the State allow the Local Govemment to participate in said i�rovernent by funding that portion of the improvement described as installation of a traffic sianal. hereinafter called the "Project"; and, WHEREAS, Transportati�on Code, §201.209 allows the State to enter into an inte�local agreement wifh a Local Govemment; and, WHEREAS, the State has determined that such participation is in the best interest of the atizens of the Stafe; NOW,'THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto, to be by them respectively kept and perfomied as hereinafter set fonh, the State and the Local Govemment do agree as follows: AGREEMENT Article 1. Time Period Covered. The period of this LPAFA is as stated in the MAFA, without exception. Article 2. Project Fundtng and Work Responsibilities. The State will authorize the performance of only those Project items of worlc which the Local Govemment has reques#ed and has agreed to pay for as descn'bed in Attachmerrt A, Payment Provision and Work Responsibilities which is attached to and made a part of this wntract. In addition to identifying those items of work paid for by payments to the State, Attachment A, Payment Provision and Work Responsibilities, also specfies those Project items of work that are the responsiblity af the Local Govemmerit and will be carried out and completed by the Local Govemment, at no cost to the State. CS] # 6160-95-001 District # Wichita Falis Code C6art 64 # 46050 Project: RMC 6164-95-OOl Article 3. Paymertt of Funds. Whenever funds are paid by the Local Govemment to the State under this Agreement, the Local Govemment shall remit a chedc or warrant made payable to the "Texas Departmerrt of Transportation Trust Fund." The check or warrant shafl be deposited by the State in an escrow account to be managed by the State. Funds in the escrow account may only be applied by the State to #he Projec:t. If, after final Projed accounting, excess funds remain in the escrow account, those funds may be applied by the State to tl�e Local GovemmenYs coritractual obligations to the State under another advance funding agreement. Article 4. Rfght of Access. If the Locai Govemment is the owner of any part of the Project site, the Local Govemment shall permit the State or its authorized represeMative access to the site to perform any activities required to execute the woric. Article 5. AdjustmeMs Outside the Project Site. The Local Govemment will provide for all necessary right-of-way and utility adjustments needed for performance of the work on srtes not owned or to be acquired by the State. Article 6. Responsibilities of the Parties. Responsibilities of the Parties wiN be under the conditions as provided inr in the MAFA, without exception. Article 7. Documerrt and Information Exchange. The Local Govemment agrees to electronicalfy deliver to the State alf general nobes, specificabons, contrad provision requirements and related documentation in a Microso�R� Word or similar document. If requested by the State, the Local Government will use tl�e State's document template. The Local Govemment shail also provide a detaiied construction time estimate ir�cluding types of activities and month in the format required by the State. This requiremeM applies whether the local entity cxeates the documerrts with its own foroes or by hiring a consulhant or professional provider. Arlide 8. Inspection and Corxiuct of Work. Unless othervvise spedfically stated in Attachment A, PaymeM Provisbn and Woric Responsibilities, to this contrad, the State will supervise and inspect all work perFormed hereunder and provide such engineering inspection and testing servir.es as may be required to ensure that the Projed is accomplished in accordance with the approved plans and specifications. A!1 correspondence and instructions to the contractor pertorming the work wi!! be the sole responsibility of the State. Unless otherwise speaficalty stated in Attachment A to this contract, all work will be pertomied in accordance with the Standarol Specficatrons for Consfruction end Malrrtenance ofH+ghways, Streets, and Bridges adopted by the State and incorporated herein by reference, or special speafications approved by the State. Article 9. increased Costs. Increased cost will be under the conditions as provided for in the MAFA, without exception. Article10. Maintenance. Project Maintenance will be under the conditions as provided for in the MAFA, without exception. Article 11. Termination. Termination of this LPAFA shall be under the conditions as stated in the MAFA, witliout exception. CSJ # 6160-95-OOI District # Wichita Falls Code Chart 64 # 46050 Project: RMC 6164-95-001 Article 12 Notices. Notices of this LPAFA shall be ander the conditions as stated in the MAFA, without exceptan. I.acal Govemmer�t• Citv Manauer Darron Leiker Citv of Wichita Falls � 1300 7 PO Bax 1431 Wichita Falls. TX 76307 Articte 93. Sole Agreement. Sole l�qreement of this LPAFA shail be under the conditions as stated in the MAFA, withouk excepiion. Article 94. Successors and Assigns. The State and the Local Govemment each binds itself, its successors, executors, assigns, and administrators to the other party to this agreemerrt and to the successors, executors, assigns, and administrators of such other party in respec� to all covenarrts of thEs agreement. Article 15. Amendments. Amendments to this �PAFA sMai1 t�e made as de�ibed in the MAFA, without exception. Article 16. incorporation of Master Agreement Provisions. This LPAFA incorporates all relevant provisions of the Master Advance Funding Agreement (MAFA) in effect on the date of final execu�on of this LPAFA, unless such MAFA provision is spedfically excepted herein. Any conflid between the terms of the NIAFA and this LPAFA shall be govemed and controlled by this LPAFA. Article 17. State Auditor. The state auditor may conduct an audit or investigation of any en#ity receiving funds from the st�e d�rediy urider the corrtrad or ir+direcHy through a subcoritract under the contrad. Acceptance of funds diredly under the contract or indirectly through a subcontract unde� this corrtrac� acxs as acceptance of the authority of the s#ate auditor, under the diredion of the fegisfative audit committee, to conduct an audit or investigation in connection with those funds. An entity that is the subjed of an audit or inves6gation must provide the state auditar with access to any information the state auditor considers relevant to the irnestigation or audi� Article 18. Insurance. tf this agreement authorizes the Local Govemment or its c�ntractar to perform any woric on State right of way, bei�ore beginning work the en�ty perfotming the work shall provide the State with a fu8y executed copy of the S#ate's Form 1560 Certifificate of Insurance verifying the existence of coverage in the amounts and types specified an the Certifificate � Insurance for all persons and entities working on State right of way. This cnverage shall be maintained until all work on the State right of way is complete. If coverage is not maintained, all work on State rigM of way shall c�ase immediately, and the State may recover damages and all costs of completing the work. Article 19. Signatory Warranty. The signatories to this agreement warrant that each has the authority to errter in#o this agreement on behalf of the paRy they represeM. IN WITNESS WHEREOF, TNE STATE AND THE LOCAL GOVERNMENT have executed duplicate counterparts to effectuate this agreement. � THE STATE OF TEXAS CSJ# 6160-9S-OOI District # Wichita Falls Code Chart 64 �l 46050 Project: RMC 6160-95-001 Executed for the Executive Director and approved for the Te�s T�ansportation Commission for tfie purpose and effect of adivating andlor carrying out the orders, estabtished policies or work programs here�ofore approved and authorized by the Texas TransportaSon Commission, Sy Larry D. Tegtmeyer, P.E. Date Wichita FaNs District Engineer THE LOCAI. GOVERNMENT Name of the Local Govemment CiN of Wichita Fails B ti� Typed or Printed Name and Ti�e 1 � CSJ # �60-95-001 District # Wichita Fslls Code Chart 64 �1 4b050 Project: RMC 6160-95-001 Attachment A Project Budget and Descriptbn The City of Wichita Fa11s will pay for the cost of d�e installation of a traff�c signal at the intersedion of FM 369 and Greenbriar Road, which is an on-system location. The City's pa►tiapation is 100% of the cost of this particular improvemerrt. The City's estimated cost nf this additional work is �168,316.49, induding conshuction iiems, and engineering and contingenaes. The State has estimated the project to be as follows: Descriptlon Total Federal Stabe �a� Estimate Participation Parttcipation Participation Cost °�6 Cost °k Cost % Cost - < Gonstruction of Ttaffic $143�880.25 O�o 30.00 096 50.00 10096 5943�860.25 ty ��� L � . yy . f �J� � : t?' I i.w�T�•.' t�.. i7���A'��. .. FaR ', leC�.: } .. w�� � :!', t:`� ^^'� �,_ Dired State Costs $24�45624 0°k 50.00 0°� '- $0-00 100% $24,456.2Q (incfuding pfan review, inspection and ovetsigM) EstNnated at 17°� TOTAL 5168 316.49 50.00 ;0.00 $168 316.49 Direct State Cost will be based on actual charges. Cit�s Participation (100%) _ ��� This is an estimate only, final partiapation amounts will be based on actual charges to the projec�t.