HomeMy WebLinkAboutResolution - 2010-R0300 - Committment Agreement For Construction And Operation Of College Baseball HOF - 06/24/2010Resolution No. 2010-RO300
June 24, 2010
Item No. 5.22
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Commitment
Agreement between the City of Lubbock and The College Baseball Foundation to
provide the land for the public purpose of construction and operation of the
National College Baseball Hall of Fame. Said Commitment Agreement is
attached hereto and incorporated in this Resolution as if fully set forth herein and
shall be included in the minutes of the Council.
Passed by the City Council on June 24, 52010
TOM MARTIN, MAYOR
ATTEST:
ir�p
Rebe ca Ga>za, CitSecretary
APPROVED AS TO CONTENT:
Tom Martin, Mayor
APPROVED AS TO FORM:
Linda L. Chamales,
Economic Development Attorney
Lc: cityatt/Linda/Res- CBF Commitment
June 16, 2010
Resolution No. 2010-RO300
COMMITMENT AGREEMENT
This Commitment Agreement (the "Agreement") is between the CITY OF LUBBOCK,
TEXAS (the "City"), A Texas Home Rule Municipal Corporation, and the COLLEGE
BASEBALL FOUNDATION (the "CBF"), a Texas nonprofit organization, acting by and
through their respective and duly authorized officers and officials.
RECITIALS
WHEREAS, the CBF is a nonprofit organization founded in 2003, with
donations and grants from interested and caring citizens, organizations and charitable
foundations, to support it in achieving its goal of building and displaying the histories,
memorabilia, artifacts and educational materials of the past and present greats of college
baseball; and
WHEREAS, the CBF desires to build a permanent facility for The National
College Baseball Hall of Fame Museum on a portion of City -owned property across from
the Civic Center consisting of approximately 5 acres which is bounded by the Marsha
Sharp Freeway on the North, Avenue O on the West, and Mac Davis Lane on the South
and includes the grassy area, but not the parking lot facing Mac Davis Lane, the area
containing the Civic Center Power Plant and the road surrounding the Power Plant; and
WHEREAS, the CBF has already raised more than two million dollars
($2,000,000) in pledges, and is committed to raise all the money necessary to begin
building and to operate The National College Baseball Hall of Fame Museum on or
before December 31, 2015, and
WHEREAS, the City Council finds that a National College Baseball Hall of
Fame would serve a public purpose by promoting recreational and educational
opportunities for the citizens of the City, promote the tourism industry in the City and
further the Economic Development and Recreation, Parks, Entertainment and Cultural
Affairs goals as established in "Goals for Lubbock - A Vision Into the 21" Century"; and
WHEREAS, Texas Local Government Code Section 253.011 allows a
municipality to transfer real property to a non-profit organization for such a public
purpose;
NOW THEREFORE, the Parties agree as follows:
ARTICLE I
RECITALS AND EXHIBITS PART OF AGREEMENT
1.1 The representations, covenants, and findings, and recitations set forth in the foregoing
recitals are material to this Agreement and are hereby incorporated into and made a
part of this Agreement as though they were fully set forth in this Article I. Exhibits
Commitment Agreement Page 1
"A" and `B" attached hereto are incorporated into this Agreement as if fully set forth
herein.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
COLLEGE BASEBALL FOUNDATION
2.1 CBF warrants and represents that it is a non-profit organization, as that term is
defined in the Texas Local Government Code Section 253.011(a).
2.2 CBF warrants and represents that CBF has full lawful right, power and authority
to execute and deliver and perform the terms and obligations of this Agreement
and all of the foregoing have been or will be duly and validly authorized and
approved by all necessary actions of CBF. Concurrently with the Executive
Director's execution of this Agreement, CBF has delivered to the City copies of
the resolutions or other corporate actions authorizing the execution of this
Agreement and evidencing the authority of the persons signing this Agreement on
behalf of CBF to do so. Accordingly, this Agreement constitutes the legal, valid,
and binding obligation of CBF, and is enforceable in accordance with its terms
and provisions.
2.3 CBF warrants and represents that if transferred, it will use the real property that is
the subject of this Agreement, solely for the public purpose of a National Baseball
Hall of Fame Museum. CBF understands that if at any time the property is not
used for that purpose, ownership of the property will automatically revert to the
City.
ARTICLE III
RESPONSIBILITIES OF COLLEGE BASEBALL FOUNDATION
3.1 Prior to execution of this Agreement, CBF shall have at least two million dollars
($2,000,000.00) in written commitments for building of the Museum.
3.2 The CBF agrees to continue to raise money for construction and for future
operation of the Museum. If construction has not begun and if CBF is unable to
provide assurances satisfactory to the City that its financial condition is strong
enough to provide an income stream for construction and operation of the
Museum by December 31, 2015, this Agreement will terminate.
3.3 CBF agrees that its financial documents, including commitment agreements, shall
be open for inspection at reasonable times upon request by the City Manager or
her designee.
3.4 CBF agrees that prior to transfer of the real property, a survey will be conducted
of the mutually agreed upon parcel to be transferred and the survey shall be
incorporated in this document as Exhibit "C."
Commitment Agreement Page 2
3.5 CBF agrees to pay for the survey, a Title Policy (if required), and all closing fees
upon transfer of the real property which is the subject of this Agreement.
ARTICLE IV
RESPONSIBILITIES OF THE CITY
4.1 The City agrees to hold the real property described in the attached Exhibit "A"
until December 31, 2015.
4.2 City agrees that prior to transfer of the real property, a survey will be conducted
of the mutually agreed upon parcel to be transferred and the survey shall be
incorporated in this document as Exhibit "C."
4.3 If the Conditions Precedent to Performance, described in Article III and Article V,
have been met prior to December 31, 2015, City agrees to transfer to CBF by
Deed Without Warranty, substantially in the form attached hereto as Exhibit `B",
a portion of the real property described in the attached Exhibit "A" being
approximately 5 acres in size and including the grassy area but excluding the
public parking lot, the portion containing the Civic Center Power Plant and the
road surrounding the Power Plant
4.4 At the time the real property is transferred, the City agrees to negotiate a shared
parking agreement with CBF.
ARTICLE V
CONDITIONS PRECEDENT TO PERFORMANCE
5.1 City shall not be obligated to perform under this Agreement unless, within the
designated time periods, CBF has performed, furnished, or caused to be furnished
to the City all items required to be performed or furnished under other sections of
this Agreement, including those Responsibilities of College Baseball Foundation
listed in Article III.
5.2 City is not obligated to perform under this Agreement unless all representations,
warranties, covenants and agreements of CBF contained in this Agreement are
true and correct, as of the Closing date, except where specific reference is made to
another date.
5.3 Notwithstanding anything contained in this Agreement to the contrary, City may,
at City Council's option, elect to waive any of the conditions precedent to the
performance of CBF's obligations under this Agreement by giving CBF, at any
time prior to Closing, a written waiver specifying the waived condition precedent.
Commitment Agreement Page 3
5.4 If any of the conditions precedent to the performance of City's obligations under
this Agreement have not been satisfied or waived by the City, the City may, by
giving written notice to CBF, terminate this Agreement. On City's termination,
City and CBF shall have no further obligations under this Agreement, one to the
other.
ARTICLE VI
MISCELLANEOUS
6.1 All notices, demands, requests, and other communications required hereunder
shall be in writing, and shall be deemed to be delivered, upon the earlier to occur
of (a) actual receipt, and (b) deposit of, in a regularly maintained receptacle for
the United States Mail, postage prepaid, addressed as follows:
CITY:
City Manager
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
(806) 775-2016
Fax (806) 775-3307
CBF:
Executive Director
College Baseball Foundation
P.O. Box 6507
Lubbock, Texas 79493
(806)
Fax (806)
6.2 This Agreement is being executed and delivered and is intended to be performed
in the State of Texas, the laws of Texas governing the validity, construction,
enforcement and interpretation of this Agreement. This Agreement is
performable in, and the exclusive venue for any action brought with respect
hereto, shall lie in Lubbock County, Texas.
6.3 This Agreement embodies the entire agreement between the parties and
supersedes all prior agreements and understandings, if any, related to the real
property, and may be amended or supplemented only in writing executed by the
party against whom enforcement is sought.
EXECUTED and effective as of the date of the execution by the City of Lubbock.
CITY OF LUBBOCK, TEXAS
TOM MARTIN, MAYOR
ATTEST:
Rebe ca Garza, City Secretary
COLLEGE BASEBALL FOUNDATION
By: q� Ali-
Dr.
Mike Gustafs n,
Executive Director
Commitment Agreement Page 4
APPROVED AS TO CONTENT:
APPROVED AS TO FORM: Tom Martin
Linda L. Chamales,
Economic Development Attorney
Lc: Cityatt/Linda/Commitment Agreement — CBF
June 24, 2010
Commitment Agreement Page 5
Resolution No. 2010—RO300
Exhibit A - Page 1
A portion of the following described property deeded to the City of Lubbock September
17, 1973, as recorded in the Deed Records of Lubbock County at Volume 1359, Page
826, and situated in Lubbock County, Texas:
Lot One (1), Block One (1), Memorial Center Addition to the City of
Lubbock, Lubbock County, Texas.
Save and except the portion located at 1402 Mac Davis Lane containing
the Civic Center Power Plant and 1502 Mac Davis Lane containing the
parking lot, all as depicted on the map in Exhibit A - Page 2.
Commitment Agreement Page 6
EXHIBIT A — PAGE 2
Resolution No. 2010-RO300
A Portion of Lot 1, Block 1, Memorial Center Addition
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Resolution No. 2010-RO300
Exhibit "B"
DEED WITHOUT WARRANTY
DATE:
GRANTOR: City of Lubbock, Texas
GRANTOR'S MAILING ADDRESS
P.O. Box 2000
Lubbock, TX 79457
GRANTEE: College Baseball Foundation
GRANTEE'S MAILING ADDRESS
P.O. Box 6507
Lubbock, Texas 79493
CONSIDERATION:
Grantor and Grantee expressly stipulate that Grantee shall utilize the Property
solely in a manner that promotes a public purpose of the Grantor. Grantor and Grantee
stipulate that the consideration of public purpose use by Grantee is the sole consideration
to be received by Grantor for the conveyance of the Property by Grantor and that such
consideration is sufficient in all respects.
PROPERTY (INCLUDING ANY IMPROVEMENTS):
The Property is conveyed to Grantee, and Grantee's successors and assigns for so
long as the Property is used to promote a public purpose of the Grantor. If the Property
ceases to be so used, all rights, title, and interest conveyed by this instrument shall
automatically revert to and vest in Grantor, and Grantor's successors and assigns, without
the necessity of any further act on the part of or on behalf of the Grantor, it being the
Deed Without Warranty Pagel of6
intent of Grantor to convey a fee simple determinable estate to the Grantee. For the
purposes hereof, "public purpose" of the Grantor shall mean a College Baseball Hall of
Fame Museum.
REPRESENTATIONS AND WARRANTIES OF GRANTEE:
Grantee warrants and represents that it is a non-profit organization, as that term is
defined in the Texas Local Government Code Section 253.011(a).
Grantee represents and warrants to Grantor that it has made an independent
inspection and evaluation of the Property and the title to same and acknowledges that
Grantor has made no statements or representations concerning the present or future value
of the Property, the state of title of the Property, the condition, including the
environmental condition of the Property, or the anticipated income, costs, or profits, if
any, to be derived from the Property.
FURTHER, GRANTOR MAKES NO REPRESENTATIONS OR
WARRANTIES WHATSOEVER, EXPRESSED, STATUTORY, OR IMPLIED,
INCLUDING, BUT WITHOUT LIMITATION, AS TO THE DESCRIPTION, TITLE,
INCLUDING WITHOUT LIMITATION, THE EXISTENCE OF LIENS AGAINST
THE PROPERTY, THE VALUE, QUALITY, PHYSICAL AND ENVIRONMENTAL
CONDITION OF THE PROPERTY AND/OR MATERIALS CONTAINED OR
LOCATED IN, ON OR UNDER THE PROPERTY AND/OR IMPROVEMENTS
LOCATED THEREON, THE NATURE OF THE PAST OR HISTORIC USE OF THE
PROPERTY, MERCHANTABILITY OR FITNESS FOR PURPOSE OF ANY OF THE
PROPERTY. Grantee further acknowledges that, in accepting this Deed Without
Warranty, it has relied solely upon its independent evaluation and examination of the
Deed Without Warranty Page 2 of
Property, and public records relating to the Property and the independent estimates,
computations, evaluations and studies based thereon. Grantor makes no warranty or
representation as to the accuracy, completeness or usefulness of any information
furnished to Grantee, if any, whether furnished by Grantor or any other third party.
Grantor, its officers, employees, elected officials, independent contractors, and agents
assume no liability for the accuracy, completeness or usefulness of any material furnished
by Grantor, or any of its officers, employees, elected officials, independent contractors
and/or agents, if any, and/or any other person or party. Reliance on any material so
furnished shall not give rise to any cause, claim or action against Grantor, its officers,
employees, elected officials, independent contractors and/or agents, and any such reliance
shall be at Grantee's sole risk.
THE CONVEYANCE OF THE PROPERTY SHALL BE ON A "WHERE IS",
"AS IS", AND "WITH ALL FAULTS" BASIS, AND SHALL BE WITHOUT
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESSED,
STATUTORY OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS TO
TITLE, INCLUDING, BUT NOT LIMITED TO THE EXISTENCE OF LIENS
AGAINST THE PROPERTY, THE DESCRIPTION, PHYSICAL AND
ENVIRONMENTAL CONDITION OF THE PROPERTY AND/OR MATERIALS
CONTAINED OR LOCATED IN, ON OR UNDER THE PROPERTY AND/OR
IMPROVEMENTS LOCATED THEREON, THE NATURE OF THE PAST OR
HISTORIC USE OF THE PROPERTY, QUALITY, VALUE, FITNESS FOR
PURPOSE, MERCHANTABILITY OR OTHERWISE. Grantee has satisfied itself as to
Deed Without Warranty Page 3 of 6
the title, type, condition, quality and extent of the property and property interests which
comprise the Property it is receiving pursuant to this Deed Without Warranty.
Grantor, for the consideration and subject to the reservations and exceptions to
conveyance, grants, sells, and conveys to Grantee the Property, to have and to hold it to
Grantee and Grantee's successors and assigns forever, without warranty, express or
implied, statutory or otherwise, and all warranties that might arise by common law and
the warranties created by Section 5.023 of the Texas Property Code (and all amendments
and successors thereto) are expressly excluded.
EXECUTED THIS DAY OF , 20_.
GRANTOR:
CITY OF LUBBOCK
Mu MOM
ATTEST:
City Secretary
APPROVED AS TO CONTENT:
Deed Without Warranty Page 4 of 6
APPROVED AS TO FORM:
State of Texas
County of Lubbock §
This instrument was acknowledged before me on this day of , 20_ by
as Mayor of the City of Lubbock.
Notary Public, State of Texas
My commission expires:
Deed Without Warranty Page 5 of 6
GRANTEE:
College Baseball Foundation
By: _
Name:
Title:
L/cityatt/Linda/Deed W ithout W arranty
June 18, 2010
Deed Without Warranty Page 6 of 6