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HomeMy WebLinkAboutResolution - 2019-R0023 - LEDA Funding Agreement - 01_22_2019Resolution No. 2019-R0023 Item No. 8.17 January 22, 2019 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Funding Agreement, by and between the City of Lubbock and the Lubbock Economic Development Alliance for the development of certain public infrastructure within the Lubbock Business Park Tax Reinvestment Zone. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on January22, 2019_ L'- DANIEL M. POPE, MAYOR ATTEST: Rebe ca Garza, City Secretar APPROVED AS TO CONTENT: 11-Fq." A 2a2 -:� - D. 134- oste 'ch, Chief Financial Officer APPROVED AS TO FORM: k-40-t� Kelli Leisure, Assistant City Attorney ccdocs/RES. FA LubbBusPark&LEDA 12.20.1# Resolution No, 2019-R0023 PUBLIC INFRASTRUCTURE FUNDING AGREEMENT This Public Infrastructure Funding Agreement (the "Agreement") is made by and between the City of Lubbock, a State of Texas home rule municipal corporation (the "City") upon the recommendation of the Lubbock Business Park Tax Increment Financing Reinvestment Zone #3 Board of Directors (the "Board"), and the Lubbock Economic Development Alliance, a State of Texas economic development corporation ("LEDA") (with the City and LEDA each being a "Party", and collectively the "Parties", to this Agreement), acting by and through the Parties' duly authorized officers and officials, and with this Agreement becoming effective on the date it is signed by the Parties (the "Effective Date"). RECITALS WHEREAS, on December 2, 2009, the City Council of the City (the "Council") passed Ordinance No. 2009-00113 authorizing and establishing the Lubbock Business Park Tax Increment Financing Reinvestment Zone #3 (the "TIF") for, among other things, promoting the development of the Lubbock Business Park area (the "Business Park"); and WHEREAS, the Board desires to dedicate TIF funds to LEDA in order for LEDA to undertake the construction and development of certain public infrastructure within the Business Park in order to assist the private development of real property in the Business Park (the "Project"), with the design for the Project being attached hereto as "Exhibit A" and with the budget of the Project being attached hereto as "Exhibit B"; and WHEREAS, at its meetings on June 29, 2018 and July 18, 2018, the Board reviewed and unanimously approved the design and budget for the Project, and desires that LEDA proceed with the Project; and NOW THEREFORE, for good and valuable consideration, the Parties agree as follows: AGREEMENT Section 1 — Plans. LEDA has caused the design and the budget for the Project (the "Plans") to be prepared for the construction of the Project and has received the approval of the Board for such Plans. If any changes to the Plans are made, then such changes shall be submitted by LEDA to the Board for approval at its next regularly scheduled meeting. Section 2—LEDA's Assurances. LEDA shall, to the best of its ability, ensure that the Project is constructed in accordance with the terms of this Agreement. The Parties agree that LEDA shall award all contracts for the acquisition, construction, and installation of the Project in a good, workmanlike, and commercially reasonable manner, with the standard of diligence and care normally employed by duly qualified persons utilizing their best efforts in the performance of comparable work and in accordance with generally accepted practices appropriate to the activities undertaken. LEDA shall keep the Board and the City apprised of the construction progress of the Project with reports on a regular basis. Additionally, LEDA assures the City of the following: (a) Organization. LEDA is organized and validly existing under the laws of the State of Texas, is in compliance with the laws of the State of Texas, and has the power and authority to own its properties and assets and to carry on its business in the State of Texas as now being conducted and as contemplated. (b) Authority. LEDA has the power and authority to enter into this Agreement, and has taken all action necessary to cause this Agreement to be executed and delivered, and this Agreement has been duly executed and delivered by LEDA. Public Infrastructure Funding Agreement— City of Lubbock & LEDA —January 2019 Page 1 (c) Binding Obligation. This Agreement is a legal, valid, and binding obligation on the Parties, enforceable against each Party in accordance with the terms of this Agreement, and subject to bankruptcy and other equitable principles. (d) Compliance with Law. LEDA shall not with knowledge commit, suffer, or permit any act related to the Project that violates any law, ordinance, rule, regulation, order of any governmental authority, any covenant, or restriction now or hereafter affecting the Project. (e) Requests for Payment. LEDA represents and warrants that (i) it will not submit a Payment Request for any improvements that are not part of the Project, and that (ii) it will diligently follow all procedures set forth in this Agreement with respect to the Payment Requests. (f) Financial Records. Until the completion of the Project, LEDA covenants to maintain proper books of record and to account for all costs related to the construction of the Project. These accounting records shall be maintained in accordance with generally accepted accounting principles, and shall be available for inspection by the City at any reasonable time during regular business hours on reasonable notice. (g) Plans. The City represents that it has approval of the Plans from all appropriate departments of the City and from any other public entity or public utility from which approval must be obtained. LEDA agrees that, subject to the terms of this Agreement, the Project will be constructed in full compliance with the attached Plans and any City -approved change orders. Section 3 — Board's Assurances. (a) Action Approved. At its meetings on June 29, 2018 and July 18, 2018, the Board reviewed and unanimously approved the design and budget for the Project (b) Financial Resources. Each Party represents and warrants that it has, or has the ability to obtain, the financial resources necessary to meet the obligations of this Agreement. Section 4 — Independent Contractor. In its performance under this Agreement, LEDA shall be considered an independent contractor and not an agent or employee of the City. LEDA has requested bids and accepted the bidder that provides goods and services at the best value for the TIF. The City shall not be responsible for making any payments to any contractor, subcontractor, agent, consultant employee, or supplier of LEDA upon proper request made in accordance with Section 7 of this Agreement. This Agreement is not intended to create, and shall not be construed to create, any joint enterprise between or among the Parties. Section 5 — Conveyance of the Project. Within a reasonable time after LEDA has caused the Project to be completed, LEDA hereby offers to convey to the City, in a form reasonably acceptable to the City, the Project, on the condition that the Project satisfies all City standards associated with such a Project in accordance with the City of Lubbock Code of Ordinances. Section 6 — Funding. All payments for the costs of the Project shall be made from the TIF's fund. The City shall not be responsible for any payment of the Project beyond what is specifically dedicated for the Project in the TIF budget, and available for such payment in the TIF's fund. Section 7 — Payment Requests for the Project. In order for any payment to be made to LEDA for the Project out of the TIF's fund, the following shall occur: (a) No more frequently than monthly, LEDA shall submit to the City a payment request, in a form reasonably acceptable to the Parties, together with all attachments and exhibits related to the payment request form (the "Payment Request"). In its final Payment Request, LEDA will include releases by Public Infrastructure Funding Agreement — City of Lubbock & LEDA — January 2019 Page 2 the general contractor of all liens and an assignment of any warranties and guaranties or other evidence of contingent obligations of third parties for the Project. (b) The City shall have fourteen (14) business days to approve or deny a Payment Request. If a Payment Request is not expressly denied during such time, then it shall be deemed approved. (c) Subject to the foregoing, no payment shall be made to LEDA by the City from the TIF's fund for the Project until the work with respect a Payment Request has been inspected and found to be in compliance with the City's Code of Ordinances. The City shall review each Payment Request for: its completeness; assurance that the work associated with the Payment Request is being or was completed in accordance with all applicable government laws, rules, regulations and, the terms of this Agreement; and, verification that the cost of the work specified in the Payment Request is identified in the budget of the Project. Within the timeframe of (b), above, the City shall circulate the Payment Request among the City departments responsible for conducting inspections with regard to the portion of the Project that is the subject of the Payment Request. (d) If the City denies the Payment Request, in whole or in part, the City shall give written notification to LEDA of the City's denial of the Payment Request, specifying the reasons for denial and the additional requirements to be satisfied before the City will issue an approval of the Payment Request. LEDA agrees to cooperate with the City during the approval process and to provide the City with the additional information and documentation reasonably necessary for the City to grant approval of the Payment Request. Section 8 — Indemnification and Hold Harmless. LEDA shall indemnify and hold harmless the City, including its officers, employees, and agents, as well as the Board, including its members (each an "Indemnified Party") from and against all actions, damages, claims, losses, or expense of every type and description to which they may be subjected or put, by reason of, or resulting from the breach of any provision of this Agreement by LEDA, the negligent design, engineering, or construction by LEDA or any architect, engineer, or contractor hired by LEDA for the Project required from LEDA underthis Agreement, LEDA's nonpayment under contracts between LEDA and its consultants, engineers, advisors, contractors, subcontractors, and suppliers in the performance of the Project, or any claims of any person employed by LEDA or its agents to construct the Project. Notwithstanding the foregoing, no indemnification is given hereunder for any action, damage, claim, loss, or expense directly attributable to the gross negligence or willful misconduct of any Indemnified Party. Section 9 — Termination for Convenience. This Agreement may be terminated for convenience by either Party upon thirty (30) day written notice to the non -terminating Party. Section 10 — City's Election for Cause. The City, at its option, may terminate this Agreement upon written notice to LEDA, without the consent of LEDA if LEDA shall breach any material covenant or default in the performance of any material obligation of this Agreement. If any such event occurs, then the City shall give written notice to LEDA, and LEDA agrees to meet and confer with the City and consultants as to the options available to assure timely completion of the Project, subject to the terms of this Agreement. Such options may include, but are not limited to, the termination of this Agreement by the City. If the City elects to terminate this Agreement, the City shall first notify LEDA of the grounds for such termination and allow LEDA thirty (30) days to eliminate or mitigate, to the reasonable satisfaction of the City, the grounds for termination. If at the end of such period (or any extension thereof by the City), as determined reasonably by the City, LEDA has not eliminated or completely mitigated the termination grounds to the reasonable satisfaction of the City, the City may then terminate this Agreement upon the expiration of the thirty (30) day notice. Public Infrastructure Funding Agreement —City of Lub bock & LEDA —January 2019 Page 3 Section 11— Force Majeure. Whenever performance is required of a Party under this Agreement, then that Party shall use all due diligence and take all necessary measures in good faith to perform. If completion is delayed by reasons of floods, earthquakes, other acts of God, war, civil commotion, riots, strikes, picketing, other labor disputes, damage to work in progress by casualty, or by any other cause beyond the reasonable control of the party (financial inability excepted), then the specified time for performance shall be extended by the actual time of the delay. Section 12 — Limited Liability of City. LEDA agrees that any and all obligations of the City arising out of or related to this Agreement are special obligations of the City, and the City's obligations to make any payments under this Agreement are restricted entirely to the moneys, if any, in the TIF's fund and from no other source. No City employee or agent shall incur any liability under this Agreement to LEDA or any other party in its individual capacity by reason of its actions under this Agreement or by its execution of this Agreement. Section 13 — Amendment to the Budget. The budgeted costs of the Project are included herein as Exhibit "B" and may only be modified by an amendment to this Agreement approved by both the Board and the City. Section 14 — Audit. The City shall have the right, during normal business hours and upon giving three (3) business days' prior written notice to LEDA, to review all the books and records of LEDA pertaining to any costs and expenses incurred by LEDA with respect to the Project and any bids taken or received for the construction or materials for the Project. Section 15 — Notices. Any notice, payment, or instrument required or permitted by this Agreement to be given or delivered to any Party shall be deemed to have been received when personally delivered or transmitted by facsimile transmission (which shall be immediately confirmed by telephone and shall be followed by mailing an original of the same within twenty-four (24) hours after such transmission), or seventy-two (72) hours following deposit in any United Stated Post Office, registered or certified mail, postage prepaid, addressed as follows: For City: For LEDA: City of Lubbock, Texas LEDA Attn: Director of Financial Planning & Analysis Attn: CFO P.O. Box 2000 1500 Broadway, 46 Lubbock, Texas 79457 Lubbock, Texas 79401 Section 16 — Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the legal and enforceable portion of this Agreement shall remain intact and shall be given effect to the fullest extent possible. Section 17 — Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties. This Agreement shall not be assigned without prior written consent of the other Party. Any assignment shall be in writing, shall clearly identify the scope of the rights and obligations assigned, and shall not be effective until approved by the other Party. Section 18 — Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement, or the failure by a Party to exercise its rights upon the default of either Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter. Public Infrastructure Funding Agreement— City of Lubbock & LEDA —January 2019 Page 4 Section 19 — Amendment & Merger. This Agreement cannot be changed or terminated except through written approval, signed by both Parties. No verbal agreement or conversation with any officer, agent, or employee of either Party to this Agreement, either before or after execution of this Agreement, shall affect or modify any of the terms or obligations hereunder. No oral understandings, statements, promises, or inducements contrary to this Agreement exist. No amendment to this Agreement shall be effective and binding unless and until it is reduced to writing and signed by duly authorized representative of the Parties. Section 20 — Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. Section 21— Exhibits and Recitals. The Recitals and Exhibits contained in and attached to this Agreement are hereby made a part of this Agreement and shall have the same force and effect as the terms contained herein. Section 22 — Venue. This Agreement is subject to all present and future valid laws, orders, rules, ordinances, and regulations of the United States of America, the State of Texas, the City, and any other regulatory body having jurisdiction over this Agreement. This Agreement shall be construed and governed according to the laws of the State of Texas. The sole venue for any action, controversy, dispute, or claim arising under this Agreement shall be in a court of appropriate jurisdiction in Lubbock County, Texas exclusively. Section 23 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with Tex. Gov't. Code Ann. Chapter 552 et seq., as amended the same shall be of no force and effect. Section 24 — No Third Party Beneficiaries. This Agreement is entered solely by and between, and may be enforced only by and among, the Parties. Except as set forth above, this Agreement shall not be deemed to create any rights in or obligations to any third parties. Section 25 — Remedies & Arbitration. Each Party reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. The Parties execute and enter into this Agreement on January 22 , 2019. SIGNATURES For: The CITY For: LEDA DANIEL M. POPE, MAYOR ohn Os orne, CEO Public Infrastructure Funding Agreement— City of Lubbock & LEDA —January 2019 Page 5 ATTEST: A �K� Reb ca Garza, City Se retar APPROVED AS TO CONTENT: D. Blu Kostefich, Chief Financial Officer APPROVED AS TO FORM: W4 0 /&X�4 eIli Leisure, Assistant City Attorney Public Infrastructure Funding Agreement— City of Lubbock & LEDA —January 2019 Page 6 Exhibit "A" — Plans Public Infrastructure Funding Agreement — City of Lubbock & LEDA — January 2019 Page 7 PARKHILL SMITH & COOPER PROJECT BANDERA Issue. OPTION 1 Date: 04/24/2018 Pmleet No 2291.05 Sheet. 1 OF 3 LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE Lubbock Business Park Project Bandera OPTION 1 Lubbock, Texas -LUBBOCK COW)) ECONOMIC DEVELOPMENT ALLIANCE ENGINEER'S OPINION OF PROBABLE COSTS Paving & Street Lights $ 309,800.00 Construction Contingency (10%) $ 30,980.00 SUBTOTAL CONSTRUCTION $ 340,780.00 Professional Fees Task 2PDS Preliminary Design $ 18,600.00 Task 3FDS Final Design $ 18,600.00 Task 4BID Bid Phase Services $ 8,000.00 Task 5CON Construction Administration Services $ 12,400.00 Task 6RPR Resident Project Representative Services $ 60,000.00 Task 7CLO Closeout Phase Services $ S,000.00 Task 8SSD Subconsultant Services for Design $ 10,000.00 Task 9SSC Subconsultant Services for Construction $ 8,000.00 SUBTOTAL PROFESSIONAL FEES $ 140,600.00 TOTAL PROJECT $ 481,390.00 Exhibit "B" — Budget Public Infrastructure Funding Agreement — City of Lubbock & LEDA — January 2019 Page 8 Lubbock Business Park TIF Funding _Summary Unappropriated Planning Years Funding to Total Date FY 2018-19 FY 2019-20 FY 2020-21 FY 2021-22 FY 2022-23 FY 2023-24 Appropriation FY 2018 Lubbock Business Park TIP Cash 500,000 0 0 0 0 0 0 500,000 Total Lubbock Business Park TIF 500,000 0 0 0 0 0 0 500,000 Project ,Name: North King Street Project Project Number: 92563 Managing Deparbnent: Lubbock Economic Development Alliance Project Manager: John Osborne Project Classification. Road Construction Project Status. Requested Start Date. 9/1/2018 End Date: 9/30/2019 Project Scope: Construction of a City of Lubbock standard "Industrial" street at approximately the mid -point between North Ivor) Ave and North Nutmeg Avenue within the Lubbock Business Park. The proposed street would extend from Lubbock Business Park Blvd., south approximately 600 feet. The new street is proposed to be 42ft wide from face of curb to face of curb, accommodating one lane of traffic in each direction and accommodating width for a central turn lane. Project Justification: Development at the Lubbock Business Park continues to increase. Adding paving and street lights along the west side of Lot 22 will allow better access and road conditions for a prospective tenant on that piece of property. Project Historic $500,000 was appropriated in FY 2017-18 Budget Amendment No. 22, Ord. No 2018-00092, August 23, 2018 Unappropriated Planning Years Appropriation to FY 2018-19 FY'_019-20 FY 2020-21 FY 2021-22 FY 2022-23 FY 2023-24 Total Ippruprmnon Detail Date Appropriation Construction 500,000 0 0 0 0 0 0 500,000 Design and Engineering 0 0 0 0 0 0 0 0 Other Acuvnies 0 0 0 0 0 0 0 Total Project Appropriation 500,000 0 0 0 0 0 0 500,000 Unappropriated Planning Years Funding to FY 2018-19 FY 2019-20 FY 2020-21 FY 2021-22 FY 2022-23 FY 2023-24 Total h uniting Dctwl Date Fundinu Lubbock Business Park TIT Cash 500,000 0 0 0 0 0 0 500,000 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Total Funding Sources 500,000 0 0 0 0 0 0 500,000 Unappropriated Planning Years FY 2018-19 FY 2019-20 FY 2020-21 FY 2021-22 FY 2022 23 FY 2023 ?d Total Operating Budget Gnpact Funding No Impact Anticipated 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Total Operating Budget Impact 0 0 0 0 0 0 0 CERTIFICATE OF INTERESTED PARTIES FORM 1295 loll Complete Nos, 1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos, 1, 2, 3, 5, and 6 it there are no interested parties. CERTIFICATION OF FILING Certificate Number: 1 Name of business entity Tiling form, and the city, state and country of the business entity's place of business. 2019-440448 Lubbock Economic Development Alliance Lubbock, TX United States Date Filed: 01/10/2019 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock Date Acknowledged: 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- 14480 Road & Infrastructure (N. King Street) at Lubbock Business Park 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling Intermediary 5 Check only if there is NO Interested Party. X 6 UNSWORN DECLARATION L My name is r�4 N 0. O ►1►1 N and my date of birth is My address isIx (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in Lu b�uCounty, State of ee? ! on the A24day of (month) (year) Si nature authori d agent of contracting business entity (Dedarant) Forms provided by Texas Ethics Commission www.)athia..state.tx.utversion v1,1.28ab615o