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HomeMy WebLinkAboutResolution - 2023-R0033 - Civic Park Construction Funding Agreement with Lubbock Experience and CBD TIFResolution No. 2023-R0033 Item No. 6.5 January 24, 2023 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK, TEXAS: THAT, the Mayor of the City of Lubbock, Texas (the "City") is hereby authorized and directed to execute for and on behalf of the City, a Construction and Funding Agreement (the "Agreement") related to the provision of funding for construction of a Civic Park in Downtown Lubbock located at 1301 Broadway Avenue, by and among the City, the Central Business District Tax Increment Financing Reinvestment Zone, a tax increment reinvestment zone created by the City pursuant to Chapter 311, Texas Tax Code, and Lubbock Experience Inc., a 501(c)(3) nonprofit organization, and all related documents. Said Agreement is attached hereto and incorporated into 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 this 24th day of January, 2023. ATTEST: I �q� "r Rebe ca Garza City ecretary APPROVED AS TO CONTENT: Brianna Brown Business Development Director APPROVED AS TO FORM: ql�� Jerry V. Kyle, Jr. Bond Counsel 4154-5!0-3124.1 Resolution No. 2023-R0033 CONSTRUCTION AND FUNDING AGREEMENT BY AND AMONG THE CITY OF LUBBOCK, TEXAS, THE CENTRAL BUSINESS DISTRICT TAX INCREMENT FINANCING REINVESTMENT ZONE, AND LUBBOCK EXPERIENCE, INC. FOR A DOWNTOWN CIVIC PARK This Construction and Funding Agreement (the "Agreement") is entered into and made effective on this January 24, 2023, by and between the City of Lubbock, Texas, a Texas home -rule municipality (the "City"), the Central Business District Tax Increment Financing Reinvestment Zone, a tax increment reinvestment zone created by the City pursuant to Chapter 311, Texas Tax Code (the "Zone") and Lubbock Experience, Inc., a Texas non-profit corporation ("LEI" and together with Zone and LEI, the "Parties"). RECITALS WHEREAS, the City owns the approximately 1.84-acre tract generally located between Avenue L on the East, 1311 Street on the South, Avenue M on the West, and Broadway on the North within the corporate limits of the City (as more particularly described in the hereinafter defined Park License, the "Park Tract"); WHEREAS, the City and has entered into that certain License Agreement, dated April 26, 2022 (the "Park License"), wherein the City granted a license to LEI to construct a Downtown Civic Park within the Park Tract (the "Park") upon the terms and conditions contained therein; WHEREAS, the Zone and LEI seek funding from the City for a portion of the costs of the Park and the City Council has determined that it is in the best interests of the City to provide such funding on the terms and under the conditions contained herein and in the Park License. NOW, THEREFORE, in consideration of the recitals and mutual covenants made by the Parties to be respectively kept and performed, the Parties agree as follows: Section 1. Purpose of Agreement; Term. The purpose of this Agreement is to establish the responsibilities of the Parties regarding the funding and construction of the Park. This Agreement shall take immediate effect upon its execution by all Parties and the term hereof shall be coterminous with the term of the Park License. Section 2. Contribution by the City; Use of Contribution. Subject to the terms and conditions hereof and of the Park License, the City agrees to provide up to $1,000,000 to LEI (the "Park Contribution"). LEI agrees to use the Park Contribution solely for costs related to the construction of the Park. LEI further agrees not to apply the Park Contribution in any manner that would not be a lawful application of City funds. Without limiting the generality of the preceding sentence, LEI shall be solely responsible for ensuring that the Park Contribution is used to pay costs of projects that have been procured in a manner authorized for City projects. LEI understands and agrees that the City intends to utilize proceeds of its City of Lubbock, Texas, Tax and Waterworks System Surplus Revenue Certificates of Obligation, Series 2017A (the "Certificates") to make the Park Contribution. LEI understands and agrees that in addition to all other terms, conditions and limitations herein and in the Park License, the Park Contribution may only be used for the following purposes: (i) design, relocation, upgrading and replacement of public utility infrastructure and construction of gateways and green spaces in the City's Central Business District; (ii) renovations, improvements and extensions to City streets, including sidewalks, street lighting, traffic signals"controllers and traffic signal communication systems, signage, landscaping, utility improvements, extensions, relocations and acquisition of land, rights - of -way and equipment in connection therewith; (iii) improvements, renovations, replacements, relocations and extensions to the City's Wastewater System; (iv) improvements, renovations, replacements, relocations and extensions to the City's Waterworks System; and (v) payment of professional services of attorneys, financial advisors, engineers and other professionals in connection with (i)-(iv). As a condition to providing all or any portion of the Park Contribution, the City may require that LEI provide such written documentation, including but not limited to certifications, as the City deems appropriate to evidence compliance with the requirements hereof and the Park License. Section 3. Park License; Construction and Use of Park. Except where the terms of this Agreement explicitly conflict with the terms of the Park License, the terms of the Park License are intended to remain in full force and effect and this Agreement shall be considered as supplementary to the Park License. Without limiting the generality of the preceding sentence, the Parties explicitly agree that the Park License's terms and conditions related to the following shall apply to the Park Contribution: (i) the planning, design and construction of facilities at the Park Tract, and (ii) the insurance to be obtained and indemnity to be provided by LEI. Section 4. Preservation of Tax -Exempt Status of Certificates. For so long as the Certificates or any obligations issued to refund the Certificates remain outstanding, this Agreement is intended to provide for use of the Park that is not considered a trade or business use by a private person ("Private Business Use") for purposes of Section 141(a) of the Internal Revenue Code of 1986, as amended. LEI and the Zone represent and covenant that (i) the City shall remain sole owner of the Park and that all rights to use the Park by LEI and the Zone shall be terminable by the City at the City's sole discretion if the City determines that such termination is required to protect the tax-exempt status of the Certificates, (ii) their use of the Park will not give rise to Private Business Use, and (iii) they will not allow others to use the Park in a way that will give rise to Private Business Use, unless such Private Business Use is approved by the City in writing in advance. Furthermore, any other third -party contract that provides for a service provider to manage, operate or provide services with respect to any portion of the Park entered into by the Parties will comply with the guidelines set forth in Revenue Procedure 2017-13 unless an opinion of counsel is received that the contract will not adversely impact the tax-exempt status of Certificates that financed the Park. Section 5. Default and Remedies. 5.1 Event of Default. The failure of a Party hereto to keep, observe or perform any of the terms, covenants or agreements contained in this Agreement shall be a Default if such failure is not remedied by such Party within fifteen (15) calendar days after written notice from a non - defaulting Party, or the Party fails to prosecute diligently the cure of such default to completion within such additional period as may be reasonably required to cure such default with diligence and in good faith; it being intended that, in connection with any such default which is not susceptible of being cured with due diligence and in good faith within fifteen (15) calendar days but is otherwise reasonably susceptible of cure, the time within which the Party is required to cure such default shall be extended for such additional period as may be necessary for the curing thereof with due diligence and in good faith; provided, however, that if such default is not cured within ninety (90) calendar days after notice from a non -defaulting Party of such default, notwithstanding the Party's diligent prosecution of curative efforts, then such failure shall constitute an Event of Default under this Agreement. 5.2 Right to Terminate. During the continuance of an Event of Default, a non - defaulting Party, in addition to its other remedies at law or in equity, shall have the right to give a defaulting Party notice (a "Final Notice") of a non -defaulting Party's intention to terminate this Agreement after the expiration of a period of thirty (30) calendar days from the date such Final Notice is delivered unless the Event of Default is cured, and upon expiration of such thirty (30) calendar day period, if the Event of Default is not cured, this Agreement shall terminate without liability to the non -defaulting Parties. If, however, within such thirty (30) calendar day period the defaulting Party cures such Event of Default, then this Agreement shall not terminate by reason of such Final Notice. Notwithstanding the foregoing, in the event there is an action or proceeding pending or commenced between the Parties with respect to the particular Event of Default covered by such Final Notice, the foregoing thirty (30) calendar day period shall be tolled until a final non - appealable judgment or award, as the case may be, is entered with respect to such action or proceeding. 5.3 Cumulative Remedies. The non -defaulting Parties may exercise any and all other remedies available to them at law or in equity, by statute or otherwise, which shall be cumulative of and shall be in addition to the right to terminate described in Section 5.2 above. Section 6. Miscellaneous. 6.1 Modification of Agreement. The terms and conditions of the Agreement may be modified at any time by the mutual consent of the Parties. However, no amendment or modification to this Agreement is effective unless and until it is reduced to writing and signed by duly authorized representatives of each of the Parties. 6.2 Written Notice. Unless otherwise specified, written notice will be deemed to have been duly delivered if delivered in person to the individuals listed below or if it is delivered or sent certified mail to the business address below. Each Party will have the right to change its business address by at least thirty (30) calendar days written notice to the other Parties. City: City of Lubbock LEI: Zone: Attn: W. Jarrett Atkinson, City Manager P.O. Box 2000 Lubbock, TX 79457 Experience Lubbock, Inc. Attn: John Osborne 1500 Broadway, Suite 600 Lubbock, TX 79401 Central Business District Tax Increment Financing Reinvestment Zone Attn: Dan Williams, Chair P.O. Box 2000 Lubbock, TX 79457 6.3 Immunities/Privileges. Nothing in this Agreement will be construed as a waiver or relinquishment by the City or the Zone of any right to claim exemptions, privileges, and immunities as may be provided by law. 6.4 Waiver. Failure of any Party, at any time, to enforce a provision of this Agreement, in no way constitutes a waiver of that provision, nor in any way affects the validity of this Agreement, any part of this Agreement, or the right of the Party thereafter to enforce each and every provision of this Agreement. No term of this Agreement will be deemed waived or breach excused unless such waiver is in writing and signed by the Party claiming to have waived. Furthermore, any consent to or waiver of a breach will not constitute consent to or waiver of or excuse of any other different or subsequent breach. 6.5 Invalidity. If any portion of this Agreement is held invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired. The parties will use their best efforts to replace the respective provisions of this Agreement with legal terms and conditions approximating the original intent of the parties. 6.6 Entire Agreement. It is understood this Agreement and the Park License (collectively, the "Agreements") contain the entire agreement between the Parties and supersedes any and all prior agreements, arrangements, or understandings between the parties relating to the subject matter. No oral understandings, statements, promises, or inducements contrary to the terms of the Agreements exist. The Agreements cannot be changed or terminated orally. No verbal contract or conversation with any officer, agent or employee of Parties, either before or after the execution of this Agreement, affects or modifies any terms or obligations of the Agreements. 6.7 Choice of Law, Place of Performance and Jurisdiction. This Agreement is governed by the laws of the State of Texas. Performance of this Agreement is in Lubbock County, Texas. All suits, actions, claims and causes of action relating to the construction, validity, performance and enforcement of this Agreement shall be in the courts of Lubbock County, Texas. 6.8 Force Maieure. No Party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, Acts of God, Government restrictions including wars, insurrections, natural disasters or other emergencies as declared by Federal, State or County agencies or departments, and/or any other cause beyond the reasonable control of the party whose performance is affected. If performance of any obligation of either Party hereunder is prevented or rendered impracticable or infeasible as discussed in the preceding paragraph, it is understood and agreed that there shall he no claim for damages against the obligated party for failure to perform its obligations under this Agreement. 6.9 Authority. Each Party has full power and authority to enter into and perform under this Agreement, and the person signing this Agreement on behalf of each Party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement represent that they have authorization to sign on behalf of their respective entities. 6.10 Agreement Read. Each Party acknowledges that it has read, understands, and intends to be bound by the terms and conditions of this Agreement. 6.11 Interpretation and Reliance. No presumption will apply in favor of any Party in the interpretation of this Agreement of any ambiguity of any provision hereof. 6.12 Public Information Act. The Parties agree that they will comply with the Public Information Act, Chapter 552, Texas Government Code, in responding to any request for public information pertaining to this Agreement. [Signature pages follow] IN WITNESS OF THIS AGREEMENT, the Parties, through their duly appointed agents, have executed counterparts of this Agreement, each of which shall be deemed an original. CITY OF LUBBOCK, TEXAS By: Tray Payne, pAayor CENTRAL BUSINESS DISTRICT TAX INCREMENT FINANCING REINVESTMENT ZONE By: jAa Dan Williams, Chair LUBBOCK EXPERIENCE, INC. . to W r 'borne, President