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HomeMy WebLinkAboutContract 46623-A3 1 1 i/i�(`may/'�sq, p{�-qq .g1��xy(p�[�y/ CI Y SECRElAR GONTRACr la®. A — AMENDMENT NO. 3 TO RECEIVED C#T1" SECRETARY CONTRACT NO. 46623 MAY 8 2020 CffY0FraarVV0RTEC0N0MIC DEVEILOPMENT PROGRAM AGREEMENT CIIYGMETARY WITH WAIL-MART REAL ESTATE BUSINESS TRUST This AMENDMENT NO. 3 TO CITY SECRETARY CONTRACT NO. 46623 ("Amendment") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipality organized under the laws of the State of Texas, and WAL-MART REAL ESTATE BUSINESS TRUST, a Delaware business trust ("Wal-Mart"). RECITALS The City and Wal-Mart hereby agree that the following statements are true and correct and constitute the basis upon which the parties have entered into this Amendment: A. The City and Wal-Mart Stores Texas, LLC ("Wal-Mart Stores") previously entered into that certain Economic Development Program Agreement, a public document on file in the City Secretary's Office as City Secretary Contract ("CSC") No. 46623. CSC No. 46623 was subsequently amended pursuant to that certain Amendment No. 1 (CSC No. 46623-A1) and assigned to Wal-Mart Real Estate Business Trust. CSC No. 46623, as amended and assigned, was then again amended pursuant to that certain Amendment No. 2 (CSC No. 46623-A2). CSC No. 46623, as amended and assigned by CSC No. 46623-Al and as amended by CSC No. 46623-A2, shall hereinafter be referred to as the "Agreement". B. The Agreement required, among other things, that Wal-Mart expend at least $13,000,000.00 for the construction and completion of a Wal-Mart SuperCenter store of at least 182,000 square feet on approximately 32.5 acres in the vicinity of the fixture southeast intersection of Golden Triangle Boulevard and Park Vista Boulevard (the "Phase I Improvements") and to expend at least $3,000,000.00 for the construction and completion of at least 12,000 square feet of additional retail and/or commercial space (the "Phase II Improvements") elsewhere on the Land. C. Wal-Mart wishes to sell or has sold the parcel of the Land on which the Phase II Improvements will be constructed to a third party and for the third party to complete the Phase II Improvements in accordance with the Agreement. Because the Agreement requires Wal-Mart directly to expend the Construction Costs for the Phase II Improvements, Wal-Mart has requested that the City consent to an amendment of the Agreement that allows another party to fund those Construction Costs without placing Wal-Mart in breach of its obligations under the Agreement. The City is willing to Page 1 Amendment No.3 to CSC No.46623 0 F t 11f 1,�F .0R0 Economic Development Program Agreement between City of Port Worth and Wal-Mart Real Estate Business Trust(Golden Triangle/Park Vista) °�� � � ���,�� FT. Wu rvi, i1 ail consent to Wal-Mart's request, as more specifically set forth in this Amendment and with the understanding that (i) at least $3,000,000.00 in Construction Costs must still be expended for the Phase II Improvements, but that Wal-Mart itself will not directly be required to expend those Construction Costs; (ii) the Phase II Improvements must still be completed by not later than the Phase II Completion Deadline; and (iii) that the Phase 11 Improvements will still be considered as located on the Land; that any entities making Sales within the Phase II Improvements will still be considered as Development Property Sales Entities; and that Wal-Mart will still be required to the collect Sales tax data required by Section 4.6.3 from such Development Property Sales Tax Entities in order for those Sales Tax Revenues to be included in the calculation of Wal-Mart's annual Program Grants under the Agreement; NOW, THEREFORE, in consideration of the mutual benefits and promises contained in the Agreement and this Amendment and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and Wal-Mart agree as follows: AGREEMENT 1. Section 4.2 of the Agreement (Phase II Improvements) is hereby amended to read as follows: 4.2. Phase II Improvements. By the Phase II Completion Date, at least Three Million Dollars ($3,000,000.00) in Construction Costs must have been expended for the Phase Il Improvements, either by Wal-Mart or another party. The Phase II Completion Date must occur on or before the Phase II Completion Deadline. 2. Section 4.6.1 of the Agreement (Construction Spending Reports) is hereby amended to read as follows: 4.6.1. Construction Spending Reports. Within sixty (60) calendar days following both the Phase I Completion Date and the Phase II Completion Date, in order for the City to assess whether the requirements of Sections 4.1 and 4.2, respectively, were satisfied, and the extent to which the M/WBE Construction Goal for the Phase I Improvements and the Phase II Improvements were met, Wal- Mart will provide the Director with a report in a form reasonably acceptable to the City that specifically outlines the total Construction Page 2 Amendment No.3 to CSC No.46623 Economic Development Program Agreement between City of Fort Worth and Wal-Mart Reat Estate Business Trust(Golden Triangle/Park Vista) Costs and Hard Construction Costs expended for the Improvements in question, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid, including, without limitation, final lien waivers signed by the general contractor overseeing construction of such Improvements. This report shall also include actual total Construction Costs and Hard Construction Costs expended for construction of the Improvements in question with Fort Worth Certified MIWBE Companies, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid to such contractors. Notwithstanding the above, Wal-Mart shall not be required to submit or make available any records, documents, or any portions thereof, that it determines will or may reflect or reveal trade secrets, or other confidential information, with the understanding that any determination as to compliance with this Agreement and the commitments under this Agreement will be based solely on those documents that are made available to the City. It is understood and agreed that if any Construction Costs are expended for Improvements by a party other than Wal-Mart, Wal-Mart shall solely be responsible for providing all documents relating to such Improvements that are requested by the City in accordance with this Section 4.6.3, with the understanding that any determination as to compliance with this Agreement and the commitments under this Agreement will be based solely on those documents that are made available to the City.. 3. Section 4.7 (Audits) is hereby amended to read as follows: 4.7. Audits. At such a time as Wal-Mart submits the reports required in Section 4,6.1, Wal-Mart will make available to the City, at the City's written request, any documents reasonably necessary to confirm compliance with this Agreement including, but not limited to, construction documents (the "Records"). Notwithstanding the above, Wal-Mart shall not be required to submit or make available any records, documents, or any portions thereof, that it determines will or may reflect or reveal trade secrets, or other confidential information, with the understanding that any determination as to compliance with this Agreement and the commitments under this Agreement will be based solely on those documents that are made available to the City. It is understood and agreed that if the City requires any documents in accordance with this Agreement that are in possession of a party other than Wal-Mart, Wal-Mart shall solely be responsible for providing all such documents that are requested for inspection by the City in accordance with this Section 4.7, with the understanding that any determination as to compliance with this Page 3 Amendment No.3 to CSC No.46623 Economic Development Program Agreement between City of Fort Worth and Wal-Mart Real Estate Business Trust(Golden Triangle/Park Vista) Agreement and the commitments under this Agreement will be based solely on those documents that are made available to the City. 4. Section 4.8 (Inspections) is hereby amended to read as follows: 4.8. Inspections. At any time during applicable normal business hours throughout the Term and following reasonable notice to Developer, the City shall have the right to inspect and evaluate the Land and any improvements thereon, and Wal-Mart will provide full access or cause full access to be provided to the same, in order for the City to monitor compliance with the terms and conditions of this Agreement. Wal-Mart will cooperate fully and cause full cooperation with the City during any such inspection and evaluation. Notwithstanding the foregoing, Wal-Mart or the lawful owner or tenant of the improvements in question will have the right to require that any representative of the City be escorted by a representative or security personnel of Wal-Mart or such owner or tenant during any such inspection and evaluation. S. Section 6.3 (Failure to Complete Phase Il Improvements) is hereby amended to read as follows: 6.3. Failure to Complete Phase II Improvements. If at least Three Million Dollars ($3,000,000.00) in Construction Costs for the Phase II Improvements has not been expended by the Completion Date, or if the Phase II Completion Date does not occur by the Phase II Completion Deadline, the City shall have the right to terminate this Agreement by providing written notice to Wal-Mart, in which case the City's obligation to continue making Program Grant payments to Wal- Mart shall cease as of the effective date of termination. 6. All capitalized terms used but not defined in this Amendment shall have the meanings ascribed to them in the Agreement. 7. This Amendment contains the entire agreement between the parties with respect to the matters set forth herein. All provisions of the Agreement that are not specifically amended by this Amendment shall remain in full force and effect. Page 4 Amendment No.3 to CSC No.46623 Economic Development Program Agreement between City of Fort Worth and Wal-Mart Real Estate Business Trust(Golden Triangle/Park Vista) EXECUTED to be effective as of the later date below: :• CtTY OF FORT WORTH: = ` . �� Attested by. " By: Jesus J. Chapa Assistant City Manager Mary J. K* AC# Secretary Date: APPROVED AS TO FORM AND LEGALITY: By: Peter Vaky Deputy City Attorney M&C: none required Forin 1295 Cert. No.: none required Oro'. /Vo. 2,1 •I bi — 04"2bZv WAL-MART REAL ESTATE BUSYNESS TRUST, a Delaware business trust: By: �l Name: lvtk ao�htY Title: f,- Date: Page 5 Amendment No.3 to CSC No.46623 FTN' SECRETARY Economic Development Program Agreement between �� I� City of Fort Worth and Wal-Mart Real Estate Business Trust(Golden Triangle/Park Vista) r