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HomeMy WebLinkAboutResolution - 2022-R0424 - LEDA Tri-Party Agreement 16892 with WL Plastics Corporation for Rail PortResolution No. 2022-RO424 Item No. 6.18 October 11, 2022 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, the Tri-Party Agreement, Contract No. 16892, for relocation of utility easements for WL Plastics' expansion project, by and between the City of Lubbock, the Lubbock Economic Development Alliance, Inc. (LEDA) and WL Plastics Corporation of Fort Worth, Texas, and related documents. Said Contract 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 ATTEST: Reb ca Garza, City Secr t APPROVED AS TO CONTENT: W. Jarr'e Atkinson, City Manager APPROVED AS TO FORM: Kelli Leisure, Assistant City Attorney October 11, 2022 ccdocs/RES.Contract 16892 - tri-party WL Plastics and LEDA 10.3.22 Execution Version Resolution No. 2022-R0424 Approved nctoher 11, 209— THE STATE OF TEXAS COUNTY OF LUBBOCK TRI-PARTY AGREEMENT WITH CITY OF LUBBOCK, LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, INC., AND WL PLASTICS CORPORATION This TRI-PARTY AGREEMENT (this "Agreement") Contract 16892 is entered into by and between the CITY OF LUBBOCK, a Texas municipal corporation (hereinafter called the "City") acting by and through its authorized officers, and LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, INC., a Texas nonprofit corporation (hereinafter referred to as "LEDA"), acting by and through its authorized officers, and WL PLASTICS CORPORATION, a Delaware corporation, authorized to transact business in the State of Texas, acting by and through its authorized officers (hereinafter referred to as "WL Plastics") (City, LEDA, and WL Plastics are each a "Party„ and collectively, referred to herein as "Parties"). RECITALS WHEREAS, LEDA and WL Plastics entered into that certain Performance Agreement dated August 24, 2022 (the "Performance Agreement") for, among other matters expressed therein, the conveyance of approximately 26 acres of real property as depicted on Exhibit A (the "Pronerty'l to provide for WL Plastic's contemplated expansion of operations in Lubbock (the "Project"). WHEREAS, the City currently holds a water and electrical utility easement across the Property, as more particularly depicted on Exhibit A (the "Existing Utility Easement"). WHEREAS, there is currently an approximately 60 foot right of way easement across the Property, as more particularly depicted on Exhibit A (the "Existing ROW Easement"). WHEREAS, to facilitate the initial development of the Property, the utilities under the Existing Utility Easement need to be relocated to the east of the Property, in the location more particularly depicted on Exhibit A (the "Utility Relocation"). WHEREAS, the Parties have agreed that: (i) WL Plastics shall, subject to the terms and conditions below, pay for the installation and construction of the Utility Relocation; (ii) the City shall vacate the Existing Utility Easement and accept the New Utility Easement (defined below) from LEDA; and (iii) LEDA shall grant a new utility easement covering the Utility Relocation to the City ("New Utility Easement"), LEDA shall vacate and Page 1 of 9 Execution Version release the Existing ROW Easement, and LEDA shall establish a new non-exclusive right- of-way easement to the east of the Property in the location more particularly depicted on Exhibit A ("New ROW Easement"). AGREEMENT NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows: 1. WL Plastics' Obligations. WL Plastics covenants and agrees to pay for the installation and construction of the Utility Relocation, including engineering fees and costs of third party consultants. The Utility Relocation shall consist of the rerouting of the large diameter municipal water lines and electrical primary serving Pump Station No. 15. The water rerouting construction shall consist of approximately 1,630 linear feet of 16" diameter pipe and will have fire hydrants spaced on 500' centers for a minimum of two (2) fire hydrants required for coverage. The scope of work for the Utility Relocation is more particularly described on Exhibit B. 2. LEDA Obligations. Within 10 days after LEDA receives notice of substantial completion of the Utility Relocation, as such Utility Relocation shall be considered substantially complete upon final approval and inspection from the City, such approval and inspection not to be unreasonably withheld, condition, or delayed, LEDA covenants and agrees to grant the New Utility Easement to the City, on the form and substance reasonably acceptable to LEDA, WL Plastics, and the City. The New Utility Easement shall be dedicated to the City, and the City shall assume responsibility for all maintenance, repairs, and replacement of the utilities installed within the Utility Relocation. Furthermore, concurrently with filing the New Utility Easement, LEDA covenants and agrees to vacate or release the Existing ROW Easement and replace it with the New ROW Easement, whether through dedication, conveyance, or otherwise. 3. The City Obligations. Within 10 days after the City receives notice of substantial completion of the Utility Relocation, as such Utility Relocation shall be considered substantial complete upon final approval and inspection from the City, such approval and inspection not to be unreasonably withheld, condition, or delayed, the City covenants and agrees to vacate and release the Existing Utility Easement. The City shall endeavor to avoid any unnecessary delays, and shall use its commercially reasonable efforts, to obtain all approvals and permits for WL Plastics to commence the Utility Relocation at the City's earliest available commission or council meeting. Any and all necessary initial zoning, replating, permits, or similar approval or decisions for the Utility Relocation as required herein shall be considered by the City, or the appropriate governing body within the City with such authority, at the earliest available commission or council meeting once completed application submissions have been provided to the City. 4. Temporary Construction Easements. LEDA hereby agrees to grant for the benefit of WL Plastics and its respective contractors and subcontractors, temporary Page 2 of 9 Execution Version construction easements for the purposes necessary to complete the construction of the Utility Relocation in the form reasonably acceptable to LEDA, WL Plastics, and the City. 5. Form of Easements. The easements granted pursuant to this Agreement, shall be granted on the applicable form of easement as approved by LEDA, WL Plastics, and the City. The Party granting the easement shall obtain any lienholder subordination, so that any lienholder on the easement area subordinates its interest to the grantee's interest in the easement. 6. Granting of Easements. The Parties agree that the locations identified on the Exhibit A are approximate and subject to final adjustment and relocation depending upon each Party's final survey and plans. All easements shall be recorded in the real property records of Lubbock County. The location and size of the easement area shall not unreasonably interfere with the Project's proposed development or the Utility Relocation. The size of the easement area shall be based on the size of the facilities to be constructed within the easement area as generally shown in on Exhibit A. If any Party reasonably objects to the location of the easement area and the location unreasonably interferes with the Project's proposed development, the Parties shall agree on another location, provided that such other location does not increase the costs of the Utility Relocation. 7. Further Assurances. Each of the Parties agree to work with the other Party in good faith in order to meet the development needs or requirements for the Project or for the completion of the Utility Relocation. 8. Covenant of Mutual Cooperation. The Parties agree to mutually cooperate with each other and to assist each other relating to the Utility Relocation or the grant of easements contemplated by this Agreement. The Parties agree to diligently and in good faith perform their respective obligations under this Agreement. 9. Defaults and Remedies. (a) Notice and Opportunity to Cure. If any Party fails to comply with any provision in this Agreement, then any of the non -defaulting Parties may provide written notice of default to the defaulting Party, stating with specificity the basis of the claimed default. The defaulting Party will thereafter have 15 business days to cure the default after such written notice of default before the non -defaulting Party may exercise any remedies. (b) Remedies. In addition to any other remedies provided herein or otherwise available at law or in equity, the provisions of this Agreement will be enforceable by action for specific performance after failure of a defaulting Party to cure the breach as provided in Section 9(a) above. Except as otherwise specifically provided herein, all rights, privileges and remedies afforded the Parties by this Agreement will be deemed cumulative and not exclusive, and the exercise of anyone or any of such remedies will not be deemed to be a waiver of any other right, remedy or privilege provided for herein or available at law or in equity. It is expressly understood that a recovery in damages may not be an adequate remedy for a violation of the provisions of this Agreement and that the granting of equitable remedies maybe necessary. Page 3 of 9 Execution Version (c) WL Plastics Remedy to Recover Costs. Notwithstanding anything to the contrary, if LEDA fails to cure its default under this Agreement, LEDA shall reimburse WL Plastics for all actual third party costs related to the Utility Relocation, including, but not limited to, construction, engineering, design, and permitting costs, up to the maximum reimbursement amount of $1,000,000. In the event LEDA defaults under the Performance Agreement, including, but not limited to, failure to convey the Property to WL Plastics, LEDA shall reimburse WL Plastics for all actual third party costs related to the Utility Relocation, including, but not limited to, construction, engineering, design, and permitting costs, up to the maximum reimbursement amount of $1,000,000. LEDA shall submit payment of the foregoing third party costs to WL Plastics within 20 days after WL Plastics provides an invoice to such defaulting Party with a detailed accounting and accompanying invoices showing the amount and the party providing such third party services/materials. The third party costs and expenses accrued and/or invoiced pursuant this Section shall be secured by and constitute a lien against the Property. The lien shall attach and take effect only upon recordation of a claim of lien in the Real Property Records of Lubbock County, Texas. 10. Term. The term of this Agreement shall begin on the Effective Date and end upon the completion and the performance of all obligations and conditions precedent by the Parties to this Agreement. 11. Miscellaneous. (a) Assignment. No Party may assign this Agreement without the prior written consent of the other Parties. Upon such assignment and assumption by a Party's successor in interest, the Party assigning this Agreement shall be released from all obligations under this Agreement arising on or after the effective date of the assignment and assumption, but the Party assigning the Agreement shall not be excused or released from liability for matters arising prior to the effective date of the assignment and assumption. (b) No Partnership. Nothing contained in this Agreement shall be construed to create any partnership or joint venture between the Parties. (c) Notices. Any notice, demand or other communication required to be given or to be served upon any Party hereunder shall be void and of no effect unless given in accordance with the provisions of this Section 11(c). All notices, demands or other communications must be in writing and delivered to the person to whom it is directed, either (i) via hand -delivery to the recipient at the address specified below, or (ii) via United States Postal Service certified mail, return receipt requested, postage prepaid and addressed to the recipient as specified below, or (iii) via reputable overnight delivery service, postage prepaid and addressed to the recipient as specified below, or (iv) via electronic mail to the Party at the email address set forth below, provided that such transmission is followed with a copy sent by overnight delivery. Any notice, demand or other communication shall be deemed to have been given and received (a) upon deposit with the United States Postal Service as certified mail, return receipt requested, postage prepaid and addressed to the recipient as specified below, (b) upon deposit with a reputable overnight delivery service, Page 4 of 9 Execution Version postage prepaid and addressed to the recipient as specified below, or (c) if delivered by any other method, upon receipt. To LEDA: John Osborne CEO and President Lubbock Economic Development Alliance, Inc. 1500 Broadway, Suite 600 Lubbock, TX 79401 Email: john(amarketlubbock.org With a copy to: Ann Manning Underwood Law Firm, P.C. 1111 W. Loop 289 Lubbock, TX 79416 Email: Ann.Manningaa,uwlaw.com To WL Plastics: WL Plastics Corporation 3575 Lone Star Circle, Suite 400 Fort Worth, Texas 76177 Attn: Erik Balthrop Email: erik.balthrop@,wlplastics.com To the City: City of Lubbock 1314 Avenue K Lubbock, TX 79457 Attn: Michael Keenum Email: mkeenum@mvlubbock.us (d) Authority Each Party represents to the other that it has the power and authority to enter into this Agreement and that the person executing on its behalf has the power to do so and to bind it to the terms of this Agreement. (e) Entire Agreement: Governing Law. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and negotiations with respect thereto. This Agreement may be amended only by a written instrument signed by all Parties. This Agreement shall be governed by the laws of the State of Texas and shall be deemed performable in Lubbock County, Texas. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE SOLE AND EXCLUSIVE JURISDICTION AND Page 5 of 9 Execution Version VENUE OF THE COURTS OF COMPETENT JURISDICTION OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. (f) Severability. If any provision in this Agreement is held to be unenforceable, the remainder of this Agreement shall continue in full force and effect and, to the extent permitted by law, this Agreement shall be interpreted so as to give effect to the original written intent of the Parties. If any portion of a provision is held to be unenforceable, the remainder shall be enforced to the maximum extent so as to give effect to the original written intent of the Parties. (g) Attorneys' Fees. The prevailing Party shall be entitled to its reasonable attorneys' fees and court costs, as awarded by a court in a final, non -appealable judgment, in the event any action is brought by either Party with respect to this Agreement. (h) Successors and Assigns. Subject to Section I I(a) above, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. (i) Counterparts. This Agreement may be executed in separate counterparts, each of which will be considered an original for all purposes, but which taken together will constitute one and the same instrument. 0) Time of the Essence. Time is of the essence in this Agreement. 12. Estoppel. Each Party shall, within 10 days of the request of the other Party, execute and deliver an estoppel certificate stating whether any Party to this Agreement is in default hereunder and stating such other matters as may be reasonably requested by the requesting Party or its designee. 13. Obligations Running with the Land/Memorandum of Agreement. The Parties hereto acknowledge that the provisions of this Agreement touch and concern and run with the land, so that the obligations hereof shall be binding upon all present and future owners of the Property and LEDA's adjacent property, as applicable, and shall inure to the benefit of all Parties including the present and future owners of the Property. Any Party may record the Memorandum of Agreement in the Real Property Records of Lubbock County reflecting material terms and conditions of this Agreement. 14. Lienholders. LEDA represents and warrants to the WL Plastics that as of the Effective Date, there are no liens affecting its respective parcel of land bound by this Agreement. 15. INDEMNITY. WL PLASTICS AND LEDA SHALL INDEMNIFY AND SAVE HARMLESS THE CITY OF LUBBOCK AND ITS ELECTED OFFICIALS, OFFICERS, AGENTS, AND EMPLOYEES FROM ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY KIND, CHARACTER, TYPE, OR DESCRIPTION, INCLUDING WITHOUT LIMITING Page 6 of 9 Execution Version THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY OR DEATH TO ANY PERSON, OR INJURY TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, TO THE EXTENT ARISING OUT OF, RELATED TO OR OCCASIONED BY, THE NEGLIGENT ACTS OF WL PLASTICS OR LEDA, ITS AGENTS, EMPLOYEES, AND/OR SUBCONSULTANTS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER THIS AGREEMENT AND/OR THE USE OR OCCUPATION OF CITY OWNED PROPERTY. THE INDEMNITY OBLIGATION PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. 16. Contracts with Companies Engaged in Business with Iran, Sudan, or Foreign Terrorist Organization Prohibited. Pursuant to Section 2252.152 of the Texas Government Code, prohibits the City from entering into a contract with a vendor that is identified by the Comptroller as a company known to have contracts with or provide supplies or service with Iran, Sudan or a foreign terrorist organization. 17. No Boycott of Israel. Pursuant to Section 2271.002 of the Texas Government Code, a) This section applies only to a contract that: (1) is between a governmental entity and a company with 10 or more full-time employees; and (2) has a value of $100,000 or more that is to be paid wholly or partly from public funds of the governmental entity. (b) A governmental entity may not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. 18. Texas Government Code 2274. By entering into this Agreement, WL Plastics verifies that: (1) it does not, and will not for the duration of the contract, have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association or (2) the verification required by Section 2274.002 of the Texas Government Code does not apply to the contract. If WL Plastics is a company with 10 or more full-time employees and if this Agreement has a value of at least $100,000 or more, WL Plastics verifies that, pursuant to Texas Government Code Chapter 2274, it does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and will not discriminate during the term of the contract against a firearm entity or firearm trade association. 19. WL Plastics represents and warrants that: (1) it does not, and will not for the duration of the contract, boycott energy companies or (2) the verification required by Section 2274.002 of the Texas Government Code does not apply to the contract. If WL Plastics is a company with 10 or more full-time employees and if this Agreement has a value of at least $100,000 or more, WL Plastics verifies that, pursuant to Texas Government Code Chapter 2274, it does not boycott energy companies; and will not boycott energy companies during the term of the Agreement. This verification is not required for an agreement where a governmental entity determines that these requirements Page 7 of 9 Execution Version are inconsistent with the governmental entity's constitutional or statutory duties related to the issuance, incurrence, or management of debt obligations or the deposit, custody, management, borrowing, or investment of funds. 20. Texas Public Information Act. The requirements of Subchapter J, Chapter 552, Government Code, may apply to this contract and the Parties agree that the contract can be terminated if a Parry knowingly or intentionally fails to comply with a requirement of that subchapter. To the extent Subchapter J, Chapter 552, Government Code applies to this agreement, the Parties agree to: (1) preserve all contracting information related to the contract as provided by the records retention requirements applicable to the governmental body for the duration of the contract; (2) promptly provide to the governmental body any contracting information related to the contract that is in the custody or possession of the entity on request of the governmental body; and (3) on completion of the contract, either: (A) provide at no cost to the governmental body all contracting information related to the contract that is in the custody or possession of the entity; or (B) preserve the contracting information related to the contract as provided by the records retention requirements applicable to the governmental body. [remainder of page intentionally left blank] Page 8 of 9 Execution Verslon Executed to be effective as of October 11 , 2022 (the "Effective Date"). LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, INC. By• Aohn O or4CMand President WL PLASTICS CORPORATION By: Mark Wason, CEO ATTEST: By• Rebecca arza, City Secretary APPROVED AS CONT By. W. Jarrett Atkinson, City Manager APP D A"FORM: By. KelliA Leisure, Assistant City Secretary Page 9of9 Execution Version EXIMIT A [see Property and Project site plan attached] Exhibit A — Page 1 of 2 SCALE: 1 "=60' Execution Version Scope of Work for Utility Relocation Number DESCRIPTION IVERMAIj . . 1 Mobilization / Demobilization/General Conditions 2 Storm Water Pollution Prevention Plan (SW3P) 3 Construction Traffic Control Plan 1 Remove existing 16-inch PVC water line 2 Abandon exist. 16-inch PVC water in -place 3 Cut&Plug Existing 16-inch PVC Water 4 Connect to Exist Water with Cut -In Fittings 5 Connect to Exist Water Stub 6 Furnish & Install 16-inch PVC Water 7 Furnish & Install 16-inch Gate Valve and Box 8 Furnish& Install Heavy Polyethylene Warning Tape 9 Furnish & Install Trench Safetv 10 Ductile Iron Fittings 11 Restore Surface to Original condition I Decommission exist. Electric 2 Furnish and Install electrical primary cable 3 Furnish and Install electrical primary duct 4 Furnish and install Power Pole Exhibit B — Page 1 of 1