2025-020 - Approve cost sharing agreement between the City and Fikes Wholesale for Street Improvements to a portion of 7th Street SouthwestI_ -2a25--_420
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OF PARIS, TEXAS AND FIKES WHOLESALE,
IMPROVEMENTS A PORTION OF 7th STREET SOUTHWEST IN THE
CITY; MAKING OTHER FINDINGS AND D TO THE
SUBJECT; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, Fikes Wholesale, LLC (Fikes) is the owner and operator of a CEFCO gas
station and convenience store located at 2900 S. Church Street which caters to both general
automotive and heavy truck traffic; and
said with the property is bound on one side by Th St. Southwest, a ci
causedstreet that is regularly used by heavy truck traffic to access the station; and, I
WHEREAS, over time, heavy truck traffic has
the Repair Area, shown in the map attached to the Cost Sharing Agreement
attached hereto as Exhibit A; and,
i es and the City have determined that it is totheir mutual benefit for
the City to repair the Repair area via a full -depth replacementwith concrete overlay to better
accommodate the heavy truck traffic and to make the street safer and more accommodating
to general automotive traffic; and
WHEREAS, Fikes and the City of Paris have agreed to a cost -share arrangement for
the funding oft e repair oft at portion of Th St. SW whereby each party is responsible for
fifty percent (50®/x) of the Total Cost of the project.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
PARIS,
Section . That the findings set out int e preamble tot is resolution are hereby in
all things a proved and are incorporated herein for all purposes.
Section 2. The City Council of the City of Paris hereby approves the Cost Sharing
Agreement attached hereto as Exhibit A and incorporated herein by referenced between the
City and Fikes Wholesale, LLC forte funding of the repair of that portion of Th St. S
hereby each party is responsible for fifty percent (50%) of the Total Cost of the project.
Section . That this resolutions all be effective from and after its date of passage.
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Mihir Panl aj, Mayor
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Exhibit A
Re: Repair of 7t' St. SW
This Cost Sharing Agreement (the "Agreement") is entered into by and between
the City of Paris, Texas, a Texas Horne Pule Municipal Corporation ("City") and Fikes
Wholesale, LLC_ a Texas limited liability company, for the repair of a portion of 7th St.
Southwest in the City (the "Project"), (Fikes and the City shall each be referred to as a
"Party" and collectives referred to as the "Parties".)
WIT N E S S E T
1. Effective Date
1.1 This Agreement shall take effect on April 2, 2025.
II.'Recitals
2.1 The Recitals set forth herein are a part of the terms of this Agreement for
all purposes.
.2 Fikes is the owner and operator of a CEFCO gas station and convenience
store (CEFCO #1100) located at 2900 South Church Street which caters to both general
automotive and heavy truck traffic. The property is bounded to the west by 7t" St. SW, a
City street, which is regularly used by heavy truck traffic to access the station.
2.3 Over time, the heavy truck traffic has cause significant damage to parts of
the Repair Area. The Repair Area is shown on the Map attached hereto as Exhibit A.
2.4 The parties hereto have agreed that it is to their mutual benefit for the City
to repair the Repair Area via a full depth replacement with concrete overlay to better
accommodate the heavy truck traffic and to make the street safer and more
accommodating to general automotive traffic (hereinafter referred to as the "Project.")
2.5 To that end, Fikes and the City have agreed to a cost -share arrangement
for the funding of the repair of that portion of 7 t St. SW whereby each party is responsible
for fifty percent (50%) of the Total Cost of the Project.
2.6 The City Council of the City of Faris has found that this Agreement serves
a public purpose in that it allows for the repair of a damaged section of City street at a
significantly reduced cost for the Project.
Ill. Definitions
3.1 The following terms shall be defined as follows:
"Additional Costs" shall mean costs related to geotechnical work and compaction
testing for the Project.
"Bid Cost" shall mean the sum of the contract price listed in the Construction
Contract and the Construction Contract obtained by the City after placing them out for
bids as required by Chapter 252 of the Texas Local Government Code and awarding a
contract to the lowest responsible bidder plus the cost of the Geotechnical Contract
previously let by the City
"Compacting Contract" shall mean the contract entered into between the City and
the lowest responsible bidder to perform all compaction testing work necessary to
complete the Project.
"Construction Contract" shall mean the contract entered into between the City and
the lowest responsible bidder to perform all construction work necessary to complete the
Project. The City shall obtain Fikes' approval of the Construction Contract prior to the City
executing the Construction Contract.
"Estimated Cost" shall mean the projected pre-bid cost to complete the Project. At
the time of the execution of this Agreement, the Estimated Cost is TWO HUNDRED
NINETY THOUSAND EIGHT HUNDRED NINETY-FIVE AND NO/100 DOLLARS
($290,895.00), which includes projected construction costs ($280,000.00), previously
incurred geotechnical costs ($5,895.00), and compaction testing costs ($5,000.00) and is
noted herein for purposes of informing the parties of the expected cost of the Project;
however, the obligation of either party to remit payment to the other during Final
Settlement will be based on the Total Cost.
"Final Accounting" shall mean a document that City will provide to Fikes upon
payment of the final invoices related to the Project showing the actual Total Cost and how
such Total Cost was calculated.
"Final Settlement" shall mean any payments due to either party from the other
under the terms of Section 6.2 herein, and is meant to represent the true 50/50 split of
the Total Cost between the parties.
"Geotechnical Contract" shall mean the contract entered into between the City and
the Braun Intertec Corporation ("Braun") in the total amount of $5,895.00 to perform all
geotechnical work necessary to complete the Project. As of the effective date of this
Agreement, Braun has completed all services required under the Geotechnical Contract.
"Initial Payment" shall mean the payment referred to in Section 6.1 herein and shall
be in the amount of fifty percent (50%) of the Bid Cost.
"Project" shall mean a full depth replacement with concrete overlay of an
approximately 558 ft. portio * n of 7th St. SW running from Loop 286 to the north and ending
at the south end of the South Entrance.
"Property" shall mean the property owned by Fikes located at 2900 Church St.,
Paris, Texas, and operated by Fikes as CEFCO #1100.
"Repair Area" shall mean an approximately 558 ft. portion of 7th St. SW running
from Loop 286 to the north and ending at the south end of the South Entrance of the
Property. The Repair Area is shown on the Map attached hereto as Exhibit A.
"South Entrance" shall mean the southern vehicular entrance to the Property from
7th SW St. including the entire width of the entrance and extending to its southernmost
edge.
"Total Cost" shall mean the sum of the final amounts owed under the following: 1.)
the Construction Contract, including any change orders or amendments thereto; 2.) the
Geotechnical Contract, including any change or amendments thereto; and 3.) the
Compacting Contract, including any change orders or amendments thereto.
IV. Term and Effective Date
4.1 The effective date of this Agreement shall be April 28, 2025.
4.2 The term of this Agreement shall be from its effective date until the date of
Final Settlement.
V. Consideration
5.1 In exchange for the City's undertaking the Project, which is of benefit to
Fikes in that it will provide a much improved road service for both general and heavy truck
traffic to access its Property, Fikes agrees to pay to the City an amount equaling fifty
percent (50%) of the Total Cost of the Project.
V11. Cost Sharing and Fundin Provisions
6.1 Prior to the commencement of construction, Fikes will remit to City an Initial
Payment in the amount of 50% of the Bid Cost. Fikes' obligation to make such payment
will be triggered by City's sending Fikes 1.) copies of the Construction Contract, the
Geotechnical Contract, and the Compacting Contract; and 2) an invoice for 50% of the
amount of the Bid Cost (currently estimated to be approximately $145,447.00 = 50% of
the Estimated Cost). Fikes shall remit a check or other bank draft made out to the City of
Paris, Texas for the invoiced amount within 15 days of the date of the invoice. Upon
receipt of payment by Fikes to the City, the City shall proceed with awarding a contract to
the successful bidder for construction.
6.2 Upon completion of construction and all inspections, City will provide a Final
Accounting of the Total Cost to Fikes. Should the Total Cost be either greater than or less
than the Bid Cost, the parties will determine Fikes' share of the Total Cost. Should the
Total Cost be greater than the Bid Cost, the City will provide an invoice to Fikes for 50%
of the difference along with the Final Accounting. Should the Total Cost be less than the
Bid Cost, the City will remit a payment for 50% of the difference to Fikes along with the
Final Accounting. The intent of this provision is to ensure that the parties bear a true 50/50
split of the Total Cost of the Project, and any payments made hereunder shall act as a
Final Settlement of this Agreement. Any payment owed by one Party to the other Party
will be due within 15 days of the date of the invoice.
6.3 Costs for engineering the Project and for inspections shall be borne by the
City and will not be included in the Total Cost
V111. Conditions
7.1 The terms and conditions of this Agreement are binding upon and
enforceable against and with respect to the successors and assigns of all parties hereto.
7.2 It is understood and agreed between the parties that Fikes, in performing
its obligations hereunder, is acting independently; the City assumes no responsibility or
liability in connection therewith to third parties. It is further understood and agreed among
the parties that the City, in performing its obligations hereunder, is acting independently;
Fikes assumes no responsibility or liability in connection therewith to third parties.
7.3 However, notwithstanding any other provision in this Agreement, the Parties
agree that, should a third party that executes the Construction Contract, the Geotechnical
Contract, or the Compacting Contract with the City fail to perform their obligations under
such contract, the City shall be responsible for taking all necessary steps to ensure either:
1.) the Project is completed (whether by taking legal action against the third party or
contracting with another third party to complete the Project); or 2.) the full amount of
money that was paid by Fikes to the City under this Agreement is refunded to Fikes in
full.
Vill. Authority_!q Contract
8.1 This Agreement was authorized by resolution of the City Council at its
regularly scheduled meeting on the 28th day of April, 2025, authorizing the City Manager
to execute the Agreement on behalf of the City.
8.2 This Agreement was entered into by Fikes Wholesale, Inc. pursuant to the
authority granted to the authorized official whose signature appears below.
8.3 This Agreement shall constitute a valid and binding Agreement between the
City and Fikes when executed in accordance herewith.
IX. µLe al
9.1 Amendment. No officer, official or agent of the City has the power to amend,
modify or alter this Agreement or waive any of its conditions or to bind the City by making
any promise or representation not contained herein.
9.2 Assignability. This Agreement, except by operation of law, shall not be
assigned or transferred by either Party without the prior written consent of the other Party,
which consent shall not be unreasonably withheld.
9.3 Notice. Any written notice required or permitted under the terms of this
Agreement shall be given and be deemed to have been duly served if either (1) delivered
in person, or (2) deposited certified mail, return receipt requested, postage prepaid in the
United States mail, addressed to the designated representative of the respective parties
which are designated as follows.
FIKES:
Fikes Wholesale, LLC
Attention: Legal Department
6261 Central Pointe Parkway
Temple, TX 76504
With email copy to: james.skloda@caseys.com
CITY:
CITY OF PARIS, TEXAS
Attn: City Manager
P.O. Box 9037
Paris, TX 75461-9037
With a co to:
City Clerk, City of Paris, Texas (address same as above)
City Attorney, City of Paris, Texas (address same as above)
9.4 Severability. If any term or provision of this Agreement shall be declared
unconstitutional or void by any court of competent jurisdiction, the constitutionality and
validity of the remainder of said Agreement shall not be affected thereby, and to this end
the terms and provisions of this Agreement are declared to be severable.
9.5 Entire Agreement and Governing Law. This Agreement sets forth the entire
understanding between the parties, and any other understandings or agreements shall
be canceled and superseded by this Agreement upon the date of execution hereof. None
of the terms of this Agreement shall be waived, discharged, altered or modified in any
respect, except by an Agreement in writing signed by both parties and specifically
referring to this Agreement. The captions in this Agreement are included for convenience
only and shall not be taken into consideration in any construction or interpretation of this
Agreement or any of its provisions. This Agreement is performable in Lamar County,
Texas, and shall be governed by, construed and enforced in accordance with the laws of
the State of Texas. The provisions of this Agreement shall apply to, bind and inure to the
benefit of the City, Fikes, and their respective successors, and permitted assigns, if any.
9.6 Venue. Venue for any actions arising under this Agreement shall lie
exclusively in the courts of Lamar County, Texas for any State Court action, and in the
U.S. District Court for the Eastern District of Texas for any federal court action.
9.7 Drafting.. Fikes and the City have both contributed to the drafting of this
Agreement, and no ambiguity, if any, contained in this Agreement shall be construed
against either party.
9.8 Compliance_ with Laws. Both Parties agree to comply with all applicable
federal, state and local laws, ordinances, rules and regulations. If a Party notifies the
other Party of any violation of such laws, ordinances, rules, or regulations, the Party
receiving the notification shall immediately desist from and correct the violation.
9.9 Non -Discrimination Covenant. Both Parties, for themselves, their personal
representatives, assigns, subcontractors and successors in interest, as part of the
consideration herein, agree that in the performance of their duties and obligations
hereunder, they shall not discriminate in the treatment or employment of any individual or
group of individuals on any basis prohibited by law.
9.10 Governmental Powers. It is understood and agreed that by execution of
this Agreement, the City does not waive or surrender any of its governmental powers.
Notwithstanding the foregoing, the City waives any immunity it may have related to being
sued for breach of this Agreement. Both Parties expressly acknowledge that they may be
sued for breach of this Agreement.
9.11 Non -Waiver. The failure of the City or Fikes to insist upon the performance
of any term or provision of this Agreement or to exercise any right granted herein shall
not constitute a waiver of the City's or Fikes's respective right to insist upon appropriate
performance or to assert any such right on any future occasion.
9.12 Force Maieu " re. The City and Fikes shall exercise their best efforts to meet
their respective duties and obligations as set forth in this Agreement, but shall not be held
liable for any delay or omission in performance due to force majeure or other causes
beyond their reasonable control (force majeure), including, but not limited to, compliance
with any government law, ordinance or regulation, acts of God, acts of the public enemy,
fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any
governmental authority, transportation problems and/or any other similar causes.
Notwithstanding the foregoing, the Party whose performance is prevented or delayed by
such force majeure must notify the other Party thereof as soon as reasonably possible
after the occurrence thereof, and the Party claiming force majeure must exercise
reasonable diligence to overcome the effect thereof, and to resume performance
hereunder at the earliest moment reasonably possible.
9.13 No Waiver -of - Governmental Immunity. Nothing contained in this
Agreement shall be construed as a waiver of City's governmental immunity, or of any
damage caps or limitations imposed by law, or any other legal protections granted to City
by law, except to the extent expressly provided or necessarily implied herein.
Notwithstanding the foregoing, the City waives any immunity it may have related to being
sued for breach of this Agreement. Both Parties expressly acknowledge that they may be
sued for breach of this Agreement.
9.14 Mandator Ownership Disclosure Provision. Fikes, in compliance with the
laws of the State of Texas, will execute and file Form 1295, notice of interested parties,
which can be found on the website of the Texas Ethics Commission at
Ilik3s.state N�^ �u��uaa uu wwiawlll i! �'i ��muui .. lla
9.15 Mwandato Anti -Boycott and Other Provisions. Fikes acknowledges this
Agreement may be terminated if this certification is inaccurate. Notwithstanding any other
provision in this Agreement, if this Agreement is terminated for any reason, other than a
violation of this Paragraph 9.15, the full amount of money that was paid by Fikes to the
City under this Agreement shall be refunded to Fikes in full.
i. Pursuant to Section 2271.002 of the Texas Government Code, Fikes
certifies that either (i) it meets an exemption criterion under Section
2271.002; or (ii) it does not boycott Israel and will not boycott Israel
during the term of the Agreement. Fikes acknowledges this Agreement
may be terminated if this certification is inaccurate.
ii. Pursuant to SB 13, 87th Texas Legislature, Fikes certifies that either (i)
it meets an exemption criterion under SB 13, 87th Texas Legislature; or
(ii) it does not boycott energy companies, as defined in Section 1 of SB
13, 87th Texas Legislature, and will not boycott energy companies
during the term of the Agreement. Fikes acknowledges this Agreement
may be terminated if this certification is inaccurate.
iii. Pursuant to SB 19, 87th Texas Legislature, Fikes certifies that either (i)
it meets an exemption criterion under SB 19, 87th Texas Legislature; or
(ii) it does not discriminate against a firearm entity or firearm trade
association, as defined in Section 1 of SB 19, 87th Texas Legislature,
and will not discriminate against a firearm entity or firearm trade
association during the term of the Agreement. Fikes acknowledges this
Agreement may be terminated if this certification is inaccurate.
iv. Pursuant to Subchapter F, Chapter 2252, Texas Government Code,
Fikes certifies it is not engaged in business with Iran, Sudan, ora foreign
terrorist organization. Fikes acknowledges this Agreement may be
terminated if this certification is inaccurate.
--Signature Page to Follow--
THE CITY OF PARIS, TEXAS
Rose Beverly, City Manager
FIKES WHOLESALE, LLC
By:_Jay Soupene
Title: Authorized Signatory
THE STATE OF TEXAS
COUNTY OF LAMAR
BEFORE ME, the undersigned authority, in and for said County, Texas, on this day
personally appeared Rose Beverly, City Manager of the CITY OF PARIS, a Texas
municipal corporation, known to me to be the person who's name is subscribed to the
foregoing instrument, and acknowledged to me that he has executed the same on the
City's behalf.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE
DAY OF
Notary Public Lamar County, Texas
My commission expires
THE STATE OF
COUNTY OF
This instrument was acknowledged before me on the __ day of
2025, by Jay Soupene, Authorized Signatory of FIKES WHOLESALE, LLC, known to me
to be the person whose name is subscribed to the foregoing instrument, and
acknowledged that she executed the same on behalf of Fikes Wholesale, LLC
GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE
DAY OF 20
Notary Public County,
My commission expires
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