R2003-0048 03-24-03 RESOLUTION NO. R2003-48
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO A TRAFFIC IMPACT ANALYSIS REIMBURSEMENT
AGREEMENT WITH WAL-MART REAL ESTATE BUSINESS TRUST FOR
TRAFFIC IMPROVEMENTS CONSTRUCTED ALONG FM 518 NEAR
STATE HIGHWAY 288.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain reimbursement agreement by and between the City of
Pearland and Wal-Mart Real Estate Business Trust, a copy of which is attached hereto as
Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved.
Section 2, That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest a reimbursement agreement with Wal-Mart Real Estate
Business Trust, for traffic improvements constructed along FM 518 near State Highway
288.
PASSED, APPROVED and ADOPTED this the 24th March ,
A.D., 2003.
ATTEST:
ETARY~"
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
~ day of
TOM REID
MAYOR
Exhibit "A"
Resolution No. R2003-48
TRAFFIC IMPACT ANALYSIS REIMBURSEMENT AGREEMENT
This Traffic Impact Analysis Reimbursement Agreement (the "Agreement") is made and
entered into effective as of this the 24th day of Ylarch ,2003, by and between the City
of Pearland, Texas, a municipal corporation (the "City"), and Wal-Mart Real Estate Business
Trust (Wal-Mart).
RECITALS
WHEREAS., Wal-Mart is constructing a retail development along FM 518 near state
Highway 288; and
WHEREAS, the City and Wal-Mart desire to cooperate in the development of the area to
ensure quality development while maintaining a minimal impact on the surrounding
transpo~lation infrastructure; and
WHEREAS, Wal-Mart contemplates constructing approximately 207,498 square feet of
general retail building space on an approximately 19.5 acre tract of land; and
WHEREAS, Klotz & Associates, Inc. prepared a traffic impact analysis ("TIA"); and
WHEREAS, the City's Traffic Engineer reviewed the TIA, and all parties have agreed
that the traffic improvements identified in Exhibit A will be constructed by Wal-Mart; and
WHEREAS, the estimated total cost of the traffic improvements is $363,000; and
WHEREAS, Wal-Mart is expected to generate 22% of the traffic identified in the TtA
study area; and
WHEREAS, the City has entered into a sales tax agreement with Brazoria county
Municipal Utility District No. 6, thereby generating approximately $2,400,000 annually in
unrestricted sales tax revenue for the City.
}tOU:773574. I
WITNESSETH:
NOW, THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration the receipt and sufficiency of which is hereby acknowledged, it is hereby
agreed as follows:
1. Wal-Mart agrees to construct the applicable portion of the traffic improvements identified
in Exhibit A in accordance with the TIA and Texas Department of Transportation
("TXDOT") design criteria. Such improvements shall be constructed simultaneously
with Wal-Mart's retail development.
2. Wal-Mart agrees to submit detailed evidence to the City of the actual costs incurred by it
in connection with the portion of the traffic improvements completed by it.
3. Wal-Mart agrees to notify the City of the date of substantial completion of the portion of
the traffic improvements completed by it.
4. Wal-Mart agrees to notify the City of the date of the opening of its retail development.
5. Upon the City and TXDOT inspection and approval of the traffic improvements (or
applicable portion thereof), the City agrees to reimburse Wal-Mart the sum of $283,140
within 12 months after substantial completion and opening of its retail development.
6. Any financial obligation of the City arising from this Agreement shall be payable solely
from the proceeds of the sale taxes collected pursuant to the agreement executed between
the City and Brazoria County Municipal Utility District No. 6. In the event the sales tax
proceeds available to the City are inadequate to enable the City to pay Wal-Mart in full
by the applicable date specified in Section 5 above, payments will be made to Wal-Mart
and those developers entitled to reimbursement pursuant to that certain Traffic Impact
Analysis Reimbursement Agreement dated August 27, 2001 by and between the City,
ttOU:773574.1
o
10.
11.
12.
13.
LMR Silverlake Retail Partners, Ltd. and Randall's Food and Drugs, L.P. (the
"Developers") in the order in which costs were incurred by Wal-Mart and the Developers
until Wal-Mart and each Developer has received full payment of the applicable portion of
the costs of the traffic improvements incurred by Wal-Mart and each Developer.
This agreement may only be amended, modified, or supplemented by written agreement
and signed by all of parties.
No assignment by a party hereto of any rights under or interests in this Agreement will be
binding on another party hereto until written notice of assignment is given to such other
party.
Nothing herein is intended to supersede or waive any City ordinance or regulation
pertaining to such construction.
Whenever possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this Agreement
is prohibitive or invalid under applicable law, such provision shall be ineffective to the
extent of such provision or invalidity, without invalidating the remainder of such
provision or the remaining provisions Of this Agreement.
This Agreement shall be construed and enforced in accordance with and governed by the
laws of the State of Texas.
This Agreement and all obligations crated hereunder shall be performable in Brazoria
County, Texas.
City Resolution No. R200~I-.48 (which approved and authorized this Agreement) is
incorporated herein and made a part of this Agreement for all purposes.
HOU:773574.1
14.
WAL-MART HEREBY RELEASES, ACQUITS, AND FOREVER DISCHARGES THE
CITY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS
FROM ANY AND ALL CLAIMS, DEMANDS, RIGHTS OR CAUSES OF ACTION
OF WHATSOEVER CHARACTER OR NATURE, INCLUDING ATTORNEYS'
FEES, ARISING FROM OR BY REASON OF ANY AND ALL BODILY OR
PERSONAL INJURIES, INCLUDING DEATH AND MENTAL ANGUISH, DAMAGE
TO PROPERTY AND THE CONSEQUENCES THEREOF WHICH MAY BE
SUSTAINED BY WAL-MART, ITS HEIRS EXECUTORS, ADMINISTRATORS,
SUCCESSORS, OR ASSIGNS, IN CONNECTION WITH THE CONSTRUCTION OF
THE TRAFFIC IMPROVEMENTS, UNLESS CAUSED IN WHOLE OR IN PART BY
THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE CITY, ITS OFFICERS,
AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS. WAL-MART SHALL KEEP
AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS FROM ANY AND ALL COST, LIABILITY,
DAMAGE OR EXPENSE OF ANY NATURE AND HOWSOEVER CAUSED,
INCLUDING ATTORNEY'S FEES, CLAIMED OR RECOVERED BY ANYONE BY
REASON OF INJURY TO OR DEATH OF ANY PERSON OR PERSONS OR
DAMAGE TO OR DESTRUCTION OF PROPERTY CAUSED BY OR RESULTING
FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF WAL-MART, ITS
AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS, ARISING IN
CONNECTION WITH THE CONSTRUCTION OF THE TRAFFIC IMPROVEMENTS
PURSUANT TO THIS AGREEMENT. THE PROVISIONS OF THIS SECTION
HOU:773574. I
4
SHALL SURVIVE THE TERMINATION, EXPIRATION, OR CANCELLATION OF
THIS AGREEMENT.
In witness whereof, the parties have hereunto set their hands and signatures on the date
first above mentioned.
ATTEST:
1 nD.~3, Cit:f~Secretary
Approved ,as to legal terms only
WAL-MART LEGAL DEPT.
Date: o~o~*
IRt4C
CITY OF PEARLAND
By:
Bill E~sen
City Manager
WAL-M~I'~AL ESTATE BUSINESS
TRU~
By:
Name:
Title:
HOU:773574 1
EXHIBIT A
Wal-Mart Improvements
Before the opening of the Wal-Mart Supercenter, the following roadway improvements will need
to be completed:
1. Provide for the construction of a traffic island to prevent left turns from FM518 to
the Wal-Mart Supercenter site and left tums from the Wal-Mart Supercenter site
to FM518 at driveway ND2 as depicted on Exhibit A-2.
2. Provide for the construction of improvements to the southbound approach of
CR94 at FMS18 by the addition of (i) a left turn only lane, (ii) a left turn and
through shared lane and (iii) a right turn only lane.
3. Improve CR94 north of FM518 to provide for two northbound lanes to extend
beyond the primary CR94A driveway for the Wal-Mart Supercenter site.
4. Provide for the construction of deceleration lanes at the intersection of CR94 and
FM518 and at driveways ND 1 and ND2 as depicted on Exhibit A-2.
5. Provide for a southbound left turn lane on CR94 at the primary drive of the Wal-
Mart Supercenter site.
14OU:773574.1
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AUSTIN
DALLAS
LONDON
LOS ANGELES
NEW YORK
THE WOODLANDS
WASHINGTON, D.C.
Mr. Darrin Coker
City Attorney
City of Pearland
3 519 Liberty Drive
Pearland, Texas 77581
ANDREWS&KURTH L.L.P.
ATTORNEYS
600 TRAVIS, SUITE 4200
HOUSTON, TEXAS 77002
May 6, 2003
TELEPHONE: 713.220.4200
FACSIMILE: 713.220.4285
ROBERT J. COLLINS
DIRECT: 713.220.3870
DIRECT FAX: 713.238.7140
EAIAIL: R013ERTCOLLINS(icAAKLLP.COAI
RECEIVEt.J
MAY 0 v 2003
CITY ATTORNEY
Re: Traffic Impact Analysis Reimbursement Agreement between the City of
Pearland and Wal-Mart Real Estate Business Trust
Dear Darrin:
Enclosed is a fully executed original of the Traffic Impact Analysis Reimbursement
Agreement between the City of Pearland and Wal-Mart Real Estate Business Trust. As usual,
your assistance in these matters is greatly appreciated.
Sincerely yours,
3Wel-1/44_,
Robert J. Collins
RJC:jmj
Enclosure
HOU:2158172.1