HomeMy WebLinkAboutContract 46623-A1 , 1
CITY SFCRETY r
COPITRACT Imo.��
AMENDMENT NO. 1 TO
AND CONSENT TO ASSIGNMENT OF
CITY SECRETARY CONTRACT NO. 46623
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
WITH WAL-MART STORES TEXAS,LLC
This AMENDMENT NO. 1 TO AND CONSENT TO ASSIGNMENT OF
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; WAL-MART STORES
TEXAS, LLC, a Delaware limited liability company ("Wal-Mart Stores"); and WAL-
MART REAL ESTATE BUSINESS TRUST, a Delaware business trust ("Wal-Mart
Real Estate").
RECITALS
The City, Wal-Mart Stores and Wal-Mart Real Estate 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 previously entered into that certain
Economic Development Program Agreement, a public document on file in the City
Secretary's Office as City Secretary Contract No. 46623 (the "Agreement").
B. The Agreement requires Wal-Mart Stores to 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 (the "Phase I Improvements") on approximately 3.25 acres
in the vicinity of the future southeast intersection of Golden Triangle Boulevard and Park
Vista Boulevard (the "Land"). The Phase I Improvements must be completed by
December 31, 2016, subject to extension on account of certain events outside of Wal-
Mart Stores' control (the "Phase I Completion Deadline").
C. The Agreement also requires Wal-Mart Stores to expend at least
$3,000,000.00 for the construction and completion of at least 20,000 square feet of
additional retail and/or commercial space on the Land (the "Phase II Improvements").
D. Finally, the Agreement requires Wal-Mart to enter into an Infrastructure
Agreement with the City for the completion of certain street improvements on Park Vista
Boulevard from Ray White Road to Keller Hicks Road, as more specifically outlined in
the Agreement (the Road Project"). The Road Project must also be completed by the
Phase I Completion Deadline.
Page 1 OFFICIAL.,
Amendment No. 1 to and Consent to Assignment of CSC No.46623
Economic Development Program Agreement between City of Fort Worth and Wal-Mart Stores
E. Wal-Mart Stores has experienced unforeseen delays in completing the
Road Project on account of, among other things, delays by the City caused by the City in
certain redesigns of the infrastructure planned for the project area. As a result, Wal-Mart
Stores has requested that the definition of "Phase I Completion Deadline" in the
Agreement be amended specifically to provide that these delays are covered by the force
majeure provision of the Agreement and that the Phase I Completion Deadline will be
extended on account of such delays.
F. Due to changes in market forces since the Effective Date of the
Agreement, Wal-Mart Stores has requested that the definition of "Phase II
Improvements" in the Agreement be amended to reduce the minimum square footage
required for the commercial and/or retail space comprising the Phase II Improvements
from 20,000 square feet to 12,000 square feet. The minimum of $3,000,000.00 in
Construction Costs that must be expended for the Phase II Improvements will not be
revised.
G. Section 10 of the Agreement allows Wal-Mart Stores to assign, transfer or
otherwise convey any of its rights or obligations under the Agreement to an Affiliate (as
defined in the Agreement) so long as the City, Wal-Mart Stores and the Affiliate first
execute an agreement under which the Affiliate agrees to assume a be bound by all
covenants and obligations of "Wal-Mart" under the Agreement. Wal-Mart Stores
intends to assign all of its right, title and interest in the Agreement to Wal-Mart Real
Estate, which is an Affiliate. Accordingly, the parties wish to memorialize in this
Amendment the assumption by Wal-Mart Real Estate of all covenants and obligations of
"Wal-Mart" under the Agreement
H. The City is willing to consent to Wal-Mart Stores' requests, solely as
outlined in this Amendment.
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,
Wal-Mart Stores and Wal-Mart Real Estate agree as follows:
AGREEMENT
1. Section 2 of the Agreement (Definitions) is hereby amended to revise the
definitions of the following terms:
Phase I Completion Deadline means December 31, 2016, subject
to any extension due to an event of force majeure in accordance with
Section 16 of this Agreement. Notwithstanding the foregoing, the Phase I
Completion Deadline shall automatically be extended for additional thirty
Page 2
Amendment No. 1 to and Consent to Assignment of CSC No.46623
Economic Development Program Agreement between City of Fort Worth and Wal-Mart Stores Texas,LLC
(30) day periods for each and every month beyond March 31, 2015 (i) that
the City has not fully completed the right-of-way acquisitions necessary
for the Road Project in accordance with the Infrastructure Agreement, and
(ii) for any delays, in whole or in part, due to the design and permitting (or
redesign and permitting) necessary for the Road Project including, but not
limited to, inability to obtain mitigation credits, approval and
administration of the Infrastructure Agreement, or other governmental
approvals related thereto.
Phase II Improvements means at least 12,000 square feet of retail
and/or commercial space located on the Land.
2. Section 16 of the Agreement (Force Majeure) is hereby amended to read as
follows:
16. FORCE MAJEURE.
It is expressly understood and agreed by the parties to this
Agreement that if the performance of any obligations hereunder is delayed
by reason of war, civil commotion, acts of God, inclement weather,
including, but not limited to, any delays, in whole or in part, due to the
design and permitting (or redesign and permitting) necessary for the Road
Project, including, but not limited to, in ability to obtain mitigation credits,
approval and administration of the Infrastructure Agreement or other
governmental approvals related thereto, or other circumstances which are
reasonably beyond the control of the party obligated or permitted under
the terms of this Agreement to do or perform the same, regardless of
whether any such circumstance is similar to any of those enumerated or
not, the party so obligated or permitted shall be excused from doing or
performing the same during such period of delay, so that the time period
applicable to such design or construction requirement shall be extended
for a period of time equal to the period such party was delayed.
Notwithstanding anything to the contrary herein, it is specifically
understood and agreed that Wal-Mart's failure to obtain adequate
financing to complete the Phase I Improvements by the Phase I
Completion Deadline or the Phase II Improvements by the Phase II
Completion Deadline shall not be deemed to be an event of force majeure
and that this Section 16 shall not operate to extend the respective
Completion Deadlines in such an event.
3. The amendments set forth in Sections 1 and 2 will take effect on August 9, 2016.
Page 3
Amendment No. 1 to and Consent to Assignment of CSC No.46623
Economic Development Program Agreement between City of Fort Worth and Wal-Mart Stores Texas,LLC
4. Wal-Mart Stores hereby assigns all right, title and interest in the Agreement, as
amended by this Amendment, to Wal-Mart Real Estate. This assignment will take effect
on August 9, 2016 (the "Assignment Effective Date"). Beginning on the Assignment
Effective Date, and at all times thereafter, Wal-Mart Real Estate hereby agrees to comply
with all duties and obligations of"Wal-Mart" under the Agreement.
5. Wal-Mart Real Estate understands and agrees that no act or omission of Wal-Mart
Stores, whether before or after the Assignment Effective Date, will serve to mitigate any
failure or event of default set forth in Section 6 of the Agreement, or any failure to meet
any or all of the numerical commitments for Construction Cost expenditures for the
Phase I of Improvements or for the Phase II Improvements, as set forth in Sections 4.1
and 4.2 of the Agreement.
6. All capitalized terms used but not defined in this Amendment shall have the
meanings ascribed to them in the Agreement.
7. This Amendment does not grant Wal-Mart Real Estate any rights under the
Agreement that are different from or greater than those granted to Wal-Mart Stores.
8. 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.
EXECUTED as of the dates set forth below:
[SIGNATURES IMMEDIATELY FOLLOW ON NEXT TWO (2) PAGES]
Page 4
Amendment No. 1 to and Consent to Assignment of CSC No.46623
Economic Development Program Agreement between City of Fort Worth and Wal-Mart Stores Texas,LLC
CITY OF FORT WORTH:
By: � —
Jesus J. Chapa
Assistant City Manager
Date: �-a D — 16
APPROVED AS TO FORM AND LEGALITY:
By: _ez6i:�
Peter Vaky
Deputy City Attorney
M&C: C ^Z 7_-s-f S-✓.j–114
Form 1295 Cert. No.: 20/6- F 2 8 y Z.
Form 1295 Cert. No.: 2 D/6 D 5
WAL-MART STORES
TEXAS, LLC, a Delaware limited liability
company:
By:
Name l�. I?Ili hn_'d14
Title: U.P 0 42J49(�ZtA&
Date:
_dzj� a �6 0016
A. Nei
�J. ser, fl ecretary
OFFICIAL RECORD
Page 5 CITY SECREM"w
Amendment No. 1 to and Consent to Assignment of CSC No.46623 FT.WORTHS TX
Economic Development Program Agreement between City of Fort Worth and Wal-Mart Storej TQxas,11C
WAL-MART REAL ESTATE
BUSINESS TRUST, a Delaware
business trust:
By:
L.B.
Vice President of Real Estate
Date: D o
Page 6
Amendment No. 1 to and Consent to Assignment of CSC No.46623
Economic Development Program Agreement between City of Fort Worth and Wal-Mart Stores Texas,LLC
M&C Review Page 1 of 2
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FORTWORTH
COUNCIL ACTION: Approved on 8/9/2016
DATE: 8/9/2016 REFERENCE NO.: **C-27851 LOG NAME: 17WAL-MARTPARKVISTA
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: Authorize Execution of Amendment to Economic Development Program Agreement with
Wal-Mart Stores, Texas, LLC and Wal-Mart Real Estate Business Trust to Revise
Completion Deadline for Wal-Mart SuperCenter Project at the Southeast Corner of
Golden Triangle Boulevard and Park Vista Boulevard, Revise Scope of the Second
Phase of Improvements (COUNCIL DISTRICT 7)
RECOMMENDATION:
It is recommended that the City Council authorize execution of an amendment to the Economic
Development Program Agreement (City Secretary Contract No. 46623) with Wal-Mart Stores, Texas,
LLC and Wal-Mart Real Estate Business Trust in order to extend the deadline for completion of the
Wal-Mart SuperCenter project at the southeast intersection of Golden Triangle Boulevard and Park
Vista Boulevard and to revise the scope of the second phase of that project.
DISCUSSION:
On March 4, 2014, (M&C C-26697) the City Council authorized execution of an Economic
Development Program Agreement (Agreement) with Wal-Mart Stores, Texas, LLC (Wal-Mart) under
which Wal-Mart was to construct a 182,000 square foot SuperCenter and complete road
improvements to Park Vista Boulevard by June 30, 2016 (Phase 1). In addition, Wal-Mart was to
complete 20,000 square feet of commercial and/or retail shell space on the property by June 30,
2019 (Phase II). In return, the City agreed to pay Wal-Mart certain Economic Development Program
grants, as authorized by Chapter 380, Texas Local Government Code.
On January 6, 2015, (M&C C-27137) the City Council authorized an extension of both the Phase I
Completion Deadline and the Phase II Completion Deadline by six months (to December 31, 2016
and December 31, 2019, respectively) in order to account for delays to the project due to a redesign
of the Park Vista Road construction project.
On March 17, 2015, (M&C C-27226) the City Council authorized that the Phase I Completion
Deadline and the Phase II Completion Deadline would automatically be further extended for 30 day
periods for each month after March 31, 2015 that the City had not completed the necessary right-of-
way acquisitions needed for the roadway improvements to incorporate roundabouts on Park Vista
Boulevard at the intersections of Keller-Hicks Road, Golden Triangle Boulevard and Ray White Road.
Park Vista Boulevard will be four lanes as it nears the intersections of Keller-Hicks Road and Golden
Triangle Boulevard. It will then transition back down to a two lane section between Keller Hicks Road
and Golden Triangle Boulevard and Golden Triangle Boulevard and Ray White Road.
Wal-Mart Stores continues to experience unforeseen delays in completing the road project due to
ongoing redesign by the City of the infrastructure planned for the project area. As a result, Wal-Mart
Stores has requested that the Agreement be further amended to more specifically allow the
December 31, 2016 completion deadline to be extended for any additional delays to the road project.
In addition, due to changes in market forces since the effective date of the Agreement, Wal-Mart
Stores has also requested that the definition of "Phase II Improvements" in the Agreement be
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=22622&councildate=8/9/2016 9/13/2016
M&C Review Page 2 of 2
amended to reduce the minimum square footage required for the commercial and/or retail space
comprising the Phase II Improvements from 20,000 square feet to 12,000 square feet. The minimum
of$3,000,000.00 in Construction Costs that must be expended for the Phase II Improvements will not
be revised.
The Agreement allows Wal-Mart to assign, transfer or otherwise convey any of its rights or obligations
under the Agreement to an affiliated entity so long as Wal-Mart, the City and the affiliate execute a
written agreement reflecting that arrangement. Wal-Mart intends to assign the Agreement to Wal-
Mart Real Estate Business Trust, which is an affiliated entity, effective contemporaneously with the
amendment. As a result, Wal-Mart Real Estate Business Trust will also be a party to the amendment.
Staff recommends that City Secretary Contract No. 46623 be amended to authorize these changes.
The project is located in COUNCIL DISTRICT 7, Mapsco 22Q and 22R.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that this action will have no material effect on City funds.
TO _
Fun�dDe�partment Account Project Program Activity Budget Reference# Amount
_- � ID Year (Chartfield 2)
FROM
7Fund Department Account Project Program Activity Budget Reference# Amount
- -- ID -- — ID - ---- Year (Chartfield 2)
Submitted for City Manager's Office by: Jay Chapa (5804)
Originating Department Head: Robert Sturns (212-2663)
Additional Information Contact: Ossana Hermosillo (212-2665)
ATTACHMENTS
1295Form Wal-Mart Stores TX.pdf
380 Agreement ExhibitA.pdf
Wal-Mart ParkVista Form1295.pdf
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=22622&councildate=8/9/2016 9/13/2016
CERTIFICATE OF INTERESTED PARTIES
FORM 1.2955
loft
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties.
CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business.
Wal-Mart Stores Texas, LLC 2016-92892
Bentonville,AR United States
Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for
being filed, which the form Is 08/01/2016
City of Fort Worth Date Acknowledged:
'J
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the services,goods,or other property to be provided under the contract.
46623
Economic Development Program Agreement
4 Nature of interest
Name of Interested Party City,State,Country(place of business
(check applicable)
Controlling Intermediary
Wal-Marl Property Co. Bentonville,AR United States X
Suarez,3 Bentonville,AR United States X
Zielske, Steven Bentonville,AR United States X
Whaley,Steven Bentonville,AR United States X
Allison, Gordon Bentonville,AR United States X
Lowry, L.Stanton Irving,TX United States X
Biggers, Chris Fort Worth, TX United States X
5 Check only if there is NO Interested Party.
6 AFFIDAVIT
ar,or affirm,under penalty of erjury,Ilia(the above disclosure is true and correct.
OFFICIAL SEAL
JANE BENNETT
BENTON COUNTY
NOTARY PUBLIC - ARKANSAS
MY COMMISSION EXP. JAN.20, 20
COMMISSIONH 12386344 Sig[ f ar horiz 0111 of contracting business entity
AFFIX NOTARY STAMP/SEAL ABOVE
Sworn to and subscribed before me,by the said _1� this file day of
20�,to certify which,witness my hand and seal of office.
4nalureLof2of Oi,�r administering oath Printed name of officer administering oath T te of offic�atlnstering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us
Version V1.0.277
CERTIFICATE OF INTERESTED PARTIES
FORM 1.295
1 of 1
Complete Nos,1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos. 1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2016-85105
Wal-Mart Real Estate Business Trust
Bentonville,AR United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 07/14/2016
being filed.
City of Fort Worth Date Acknowledged:
09/21/2016
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the services,goods,or other property to be provided under the contract.
46623
Economic Development Program Agreement
Nature of interest
4
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I Intermediary
Biggers, Chris Fort Worth,TX United States X
Lowry, L. Stanton Irving,TX United States X
Allison, Gordon Bentonville,AR United States X
Whaley, Steven Bentonville,AR United States X
Zielske, Steven Bentonville,AR United States X
Suarez, John Bentonville,AR United States X
Wal-Mart Property Co. Bentonville,AR United States X
5 Check only if there is NO Interested Party. ❑
6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct.
Signature of authorized agent of contracting business entity
AFFIX NOTARY STAMP/SEAL ABOVE
Sworn to and subscribed before me,by the said this the day of
20 ,to certify which,witness my hand and seal of office.
Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277
CERTIFICATE OF INTERESTED PARTIES FORM 1295
OFFICE USE ONLY
Complete Nos. 1 - 4 and 6 if there are interested parties.
Complete Nos, 1, 2, 3, 5, and 6 if there are no interested parties.
1 Name of business entity filing form,and the city,state and country of the business
entity's place of business.
WAL-MART REAL ESTATE BUSINESS TRUST
2 Name of governmental entity or state agency that is a party to the contract for
which the form is being filed.
CITY OF FORT WORTH
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,
and provide a description of the goods or services to be provided under the contract.
CITY SECRETARY CONTRACT NO. 46623-ECONOMIC DEVELOPMENT PROGRAM
AGREEMENT WITH WAL-MART STORES TEXAS,LLC
4
Name of Interested Party
City,State,Country Nature of Interest(check applicable)
(place of business) Controlling Intermediary
Wal-Mart Property Co. 702 SW 8th Street,Bentonville,AR.72716 X
John P. Suarez 702 SW 8th Street,Bentonville,AR,72716 X
Steven Zielslce 702 SW 8th Street,Bentonville,AR,72716 X
Steven P. Whaley 702 SW 8th Street,Bentonville,AR.72716 X
Gordon Y.Allison 702 SW 8th Street,Bentonville,AR.72716 X
L. Stanton Lowry 4201 Wingren,Suite 108,Irving,TX 75063 X
Chris Biggers 550 Bailey Avenue,Ste,400,Fort Worth, X
TX 76107
5 Check only if there is NO
El
.� • 001N,40'112.912. i
6 AFFIDAVIT �Q1ARr y•• %swear,or affirm, under/n&nally of per ry,that the above disclosure is true and correct,
���� ••� ;•�g``�� SIgnatu4jobffize gent of contracting business entity
AFFIX NOTARY STAMP ,,111 1,
worn and subscribed before me,by the said l�• this the _i day
0 20 i l0 to certify which,witness my and and seal of office.
G �IVi (T A,It J 411,.4..
Sign re of officer administering oath Printed name of officer administering oath i e of officer administering oath
ADD ADDITIONAL PAGES AS NECESSARY
Form provided by Texas Ethics Commission www.ethics.state.tx.us Adopted 10/5/2015