HomeMy WebLinkAboutResolution - 2014-R0216 - Partial Release Of Conditions And Covenants And Modification Agreement - LEDA - 06/12/2014resolution No. 2014—RO216
June 12, 2014
Item No. 6.24
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 Partial Release of Conditions and Covenants and
Modification Agreement, by and between the City of Lubbock and Lubbock Economic
Development Alliance, and related documents. 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 Thursday June 12, 2014.
GL N5 C. ROBERTSON, MAYOR
ATTEST:
&ec'ca Garza, City Secret
APP$.k�VED AS TO CONTENT:
i
Jame Loomis, City Manager
APPROVED AS TO FORM:
Richard Casne4 Assistant City Attorney �` z
vw:ccdocs'RES.Agrmt-LEDA
June 5, 2014
Resplution No. 2014-RO216
PARTIAL RELEASE OF CONDITIONS AND COVENANTS
AND MODIFICATION AGREEMENT
STATE OF TEXAS
COUNTY OF LUBBOCK §
This Partial Release of Conditions and Covenants and Modification Agreement (the
"Agreement"), is entered into and effective as of the 12th day of June, 2014, from the City of
Lubbock, Texas, a Texas home rule municipal corporation ("City"), and as agreed to by
Lubbock Economic Development Alliance, a Texas not-for-profit development corporation
("LEDA").
WHEREAS, by General Warranty Deed (the "Deed") dated January 8th, 2007, the City
conveyed to LEDA the surface estate to certain lands, located in Lubbock County, Texas (the
"Subject Lands"), said Deed recorded under County Clerk's File Number 2007001226, Official
Public Records of Lubbock County, Texas;
WHEREAS, the Deed contains, among other matters, certain conditions and covenants
related to (i) the prohibition upon the sale or other divesting event of certain lands described
therein (the "Prohibition Covenant"); (ii) compliance with the Grant, (as defined below) (the
"Grant Covenant"); and (iii) compliance with a certain Track Agreement and Lease of Land for
Construction/Rehabilitation of Track (the "Railroad Covenants");
WHEREAS, said conditions and covenants were provided in the Deed to meet certain
grant requirements of, and other matter related to, the United States Department of Commerce
(the "Department"), pursuant to Grant number 08-49-03071 (the "Grant");
WHEREAS, LEDA has represented to the City that the Department, pursuant to (i) letter
dated May 21, 2014, from Pedro R. Garza, Regional Director, Austin Regional Office,
PARTIAL RELEASE OF CONDITIONS AND COVENANTS PAGE I of 8
Economic Development Administration, United States Department of Commerce, to LEDA's
counsel; (ii) letter dated May 28, 2014, from Happy Rahman, Acting Regional Counsel, Austin
Regional Office, Economic Development Administration, United States Department of
Commerce, to LEDA's counsel; and (iii) letter dated May 30, 2014, from the City's counsel to
Happy Rahman, Acting Regional Counsel, Austin Regional Office, Economic Development
Administration, United States Department of Commerce, and confirmed by e-mail of same date
from Ms. Rahman to the City's counsel, has agreed to extinguish the conditions and covenants,
provided in the Deed, (a) as to the Grant Covenant and Railroad Covenant, all of the Subject
Lands; and (b) as to the Prohibition Covenant, INSOFAR AND ONLY INSOFAR, as that
certain real property described on Exhibit "A," attached hereto, is located within that certain
7.359 acre tract of real property, being described in that certain Warranty Deed dated July 26,
2001 from Market Lubbock Economic Development Corporation to the City, recorded in
Volume 7214, Page 114, Real Property Records, Lubbock County, Texas (the "Release
Property");
WHEREAS, due to the representations of LEDA, and the covenants and agreements
contained herein, the City is amenable to extinguishing said conditions and covenants from the
Deed, (i) as to the Grant Covenant and Railroad Covenant, all of the Subjects Lands; and (ii) as
to the Prohibition Covenant, INSOFAR AND ONLY INSOFAR as said conditions and
covenants cover and affect the Release Property, and to modify certain covenants in the Deed, as
more particularly prescribed below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the City and LEDA hereby agree as follows:
1. The following condition and covenant is hereby extinguished and deleted from the Deed,
PARTIAL RELEASE OF CONDITIONS AND COVENANTS PAGE 2 of 8
INSOFAR AND ONLY INSOFAR, as such condition and covenant may apply to the Release
Property, to -wit:
"Grantee shall not, during the effective term of the Grants (as defined below) and any
other period of time directed or advised by the EDA, and/or any other entity with
jurisdiction over the Grants, sell or otherwise divest itself of (i) that certain called 7.359
acre tract of land, being described in that certain Warranty Deed, dated July 26, 2001,
from Market Lubbock Economic Development Corporation to the City of Lubbock,
recoded in Volume 7214, Page 114 Real Property Deeds, Lubbock County, Texas
and/or (ii) that certain called 7.721 acre tract of land, being described in that certain
Warranty Deed, dated July 10, 2001 from Market Lubbock Economic Development
Corporation to the City of Lubbock, recorded in Volume 7174, Page 151, Real Property
Deeds, Lubbock County, Texas (the "Restricted Property").
2. The Deed is hereby modified by deleting the following covenants, to wit:
" ... Grantee shall, and hereby covenants that it will, comply with all terms, conditions
and provisions of (i) all grants received by the Grantor related to the Property, including,
without limitation, that certain Economic Development Administration Grant 08-49-
03071, the City of Lubbock original recipient (the "Grants"); ...(iii) that certain
Agreement, made as of June 13, 2001, Resolution No. 2001-R0210, by and between the
Burlington Northern and Santa Fe Railway Company, a Delaware corporation, and the
City of Lubbock, a Texas municipal corporation (the "Agreement"); and (iv) that
certain Lease, dated as of May 1, 2001, Resolution No. 2001-R0209, by and between the
Burlington Northern and Santa Fe Railway Company, a Delaware corporation, and the
City of Lubbock, a Texas municipal corporation, covering the lands described therein
(the "Lease" )."
3. Nothing contained herein shall affect the following covenant and condition, and such
covenant and condition shall remain valid and subsisting as originally provided in the Deed, to -
wit:
"Additionally, Grantee shall, and hereby covenants that it will, comply with all terms,
conditions and provisions of all applicable state and/or local statutes, rules, regulations
and ordinances relating to airspace restrictions, noise and/or any other aspect of airport
and/or aircraft operations, including without limitation, Title 14, Part 77 of the U.S.
Code of Federal Regulations."
PARTIAL RELEASE OF CONDITIONS AND COVENANTS PAGE 3 of 8
4. Except as expressly modified herein, the terms, conditions and provisions of the Deed shall
remain valid and subsisting as originally provided.
5. LEDA represents and warrants to the City that (i) it is in compliance with all terms,
conditions and provisions of the Grants, as defined in the Deed, and all other matters to which
it is bound to adhere and comply, as provided in the Deed, and hereby covenants, as a personal
covenant, to continue such compliance; (ii) the Department is authorized to extinguish the
conditions and covenants, as provided herein, and that the party acting for and on behalf of the
Department possesses authority to so act; and (iii) it is the current owner of the Subject Lands,
including without limitation, the Release Property and the said Subject Lands is subject to no
claim by any other party.
6. LEDA SHALL INDEMNIFY AND HOLD CITY, ITS ELECTED OFFICIALS,
EMPLOYEES, AND AGENTS, HARMLESS, FROM AND AGAINST ANY AND ALL
LOSS, LIABILITY, DAMAGE, CLAIM AND/OR EXPENSE, INCLUDING WITHOUT
LIMITATION, REASONABLE ATTORNEY'S FEES AND COSTS, ARISING FROM OR
RELATED TO (i) THE BREACH OF LEDA UNDER THE TERMS OF THIS
AGREEMENT; (ii) IN THE EVENT ANY REPRESENTATION, WARRANTY OF LEDA
CONTAINED IN THIS AGREEMENT IS UNTRUE AT ANY TIME; OR (iii) LEDA FAILS
TO COMPLY WITH THE CONVENANTS CONTAINED IN THIS AGREEMENT.
PARTIAL RELEASE OF CONDITIONS AND COVENANTS PAGE 4 of 8
[SIGNATURE PAGES FOLLOW)
PARTIAL RELEASE OF CONDITIONS AND COVENANTS PAGE 5 of 8
EXECUTED and effective the 12th day of ,Tune , 2014
CITY:
CITY OF LUBBOCK
GL . ROBIIRTSON, MAYOR
ATTEST:
Reb cca Garza, City-'g-ecretAry
ttVED AS �T"O�C TENT:
t400mis, City Manager
APPROVE�ATO RM:
f
Richard Casner,
Natural Resources and Utility Attorney
Linda Chamales,
Economic Development Attorney
PARTIAL RELEASE OF CONDITIONS AND COVENANTS PAGE 6 of 8
THE STATE OF TEXAS
COUNTY LUBBOCK
'tA-
This instrument was acknowledged before me on the 1.3 day of JUWne.
2014, by Glen C. Robertson, Mayor of the City of Lubbock, Texas, a Texas home rule
municipal corporation, on behalf of said City.
h* - (I & � A" �-. " -
�P.',µY P" CELIA WEB 13 Notar ublic, State of Texas
G�
Notary Public, Stale or Texas � My commission expires: 03 - D1- �vl S�
�F My Commission Expires 03.01.2018
LUBBOCK ECONOMIC DEVELOPMENT
ALLIANCE, a Texas not-for-profit development
corporation
President and Chief Executive
STATE OF TEXAS
COUNTY OF LUBBOCK
This instrument was acknowledged before me on the 4�ay of June, 2014, by John
Osborne, President and Chief Executive Officer of Lubbock Economic Development Alliance, a
Texas not-for-profit development corporation, on behalf of said corporation.
LINDA M. DAVIS
Notary Pubk, State of Tame
Notary Public, State of Texas
, My commission expires:
PARTIAL RELEASE OF CONDITIONS AND COVENANTS PAGE 7 of 8
EXHIBIT "A"
TO
PARTIAL RELEASE OF CONDITIONS AND COVENANTS
AND MODIFICATION AGREEMENT
RELEASE PROPERTY
PARTIAL RELEASE OF CONDITIONS AND COVENANTS PAGE 8 of 8
HUGO REED AND ASSOCIATES, INC.
1601 AVENUE N / LUBBOCK, TEXAS 79401 / 606-763-5642 / FAX 806.763.3691
TEXAS REGISTERED ENGINEERING FIRM F-760
TEXAS LICENSED SURVEYING FIRM 100676-00
METES AND BOUNDS DESCRIPTION of a 5.202 acre tract of land located in Section 38, Block D, Lubbock
County, Texas, being further described as follows:
BEGINNING at a 1/2" iron rod with cap set for the Southeast corner of this tract which bears N. 88°33'49" W. a
distance of 3144.40 feet and N. 01'08'50" E. a distance of 50.00 feet from the Southeast corner of Section 38,
Block D, Lubbock County, Texas, said set 1/2" iron rod with cap bears N. 8833'49" W. a distance of 10.00 feet
from the centerline of the most Westerly railroad spur located within that tract described in Volume 7214, Page
114 of the Real Property Records of Lubbock County, Texas;
THENCE N. 88033'49" W., at 16.32 feet pass a 1/2" iron rod with cap found in reference, continuing for a total
distance of 298.63 feet to a 1/2" iron rod with cap set in the East right-of-way line of North Fir Avenue as
described under County Clerk File No. 2013007060 of the Official Public Records of Lubbock County, Texas, for
the most Southerly Southwest corner of this tract;
THENCE N. 43035'36" W., along said East right-of-way line, a distance of 45.03 feet to a 1/2" iron rod with cap
set for the most Westerly Southwest corner of this tract;
THENCE N. 01°21'47" E., continuing along said East right-of-way line, a distance of 658.17 feet to a 1/2" iron
rod with cap set for the Northwest corner of this tract;
THENCE S. 88033'49" E. a distance of 327.84 feet to a 1/2" iron rod with cap set for the Northeast corner of this
tract, said iron rod with cap bears N. 88033'49" W. a distance of 10.00 feet from the centerline of said most
Westerly railroad spur.
THENCE S. 01°08'50" W., being 10.00 feet West of and parallel to the centerline of said railroad spur, a
distance of 690.00 feet to the Point of Beginning.
Bearings relative to Grid North, NAD 83, Texas Coordinate System, North-Central Zone, City of Lubbock
Geodetic Network and Aerial Control. Distances are Surface, U.S. Survey Feet.
March 7, 2014
�*+BRENT CAR OLL
5410 . �P17
Brent Carroll
Registered Professional Land Surveyor
No. 5410 State of Texas
HUGO REED AND ASSOCIATES, INC.
1601 AVENUE N / LUBBOCK, TEXAS 79401 / 806-763-56421 FAX 808-7633891
TEXAS REGISTERED ENGINEERING FIRM F-760
TEXAS LICENSED SURVEYING FIRM 100676-00
METES AND BOUNDS DESCRIPTION of a 2.50 acre tract of land located in Section 38, Block D, Lubbock
County, Texas, being further described as follows:
BEGINNING at a 1/2" iron rod with cap set for the Southeast corner of this tract which bears N. 88033'49" W. a
distance of 3144.40 feet and N. 01008'50" E. a distance of 740.00 feet from the Southeast corner of Section 38,
Block D, Lubbock County, Texas, from whence a found 1/2" iron rod with cap bears S. 01 008'50" W. a distance
of 690.00 feet and N. 8803349" W. a distance of 16.32 feet, said set 1/2" iron rod with cap also bears N.
88033'49" W. a distance of 10.00 feet from the centerline of the most Westerly railroad spur located within that
tract described in Volume 7214, Page 114 of the Real Property Records of Lubbock County, Texas;
THENCE N. 88°33'49" W. a distance of 327.84 feet to a 1/2" iron rod with cap set in the East right-of-way line of
North Fir Avenue as described under County Clerk File No. 2013007060 of the Official Public Records of
Lubbock County, Texas, for the Southwest corner of this tract;
THENCE N. 01°21'47" E., along said East right-of-way line, a distance of 332.81 feet to a 1/2" iron rod with cap
set for the Northwest corner of this tract;
THENCE S. 8803349" E. a distance of 326.59 feet to a 112" iron rod with cap set for the Northeast corner of this
tract, said 1/2" iron rod with cap bears N. 88033'49" W. a distance of 10.00 feet from the centerline of the most
Westerly railroad spur.
THENCE S. 01'08'50" W., being 10.00 feet West of and parallel to the centerline of said railroad spur, a
distance of 332.81 feet to the Point of Beginning.
Bearings relative to Grid North, NAD 83, Texas Coordinate System, North-Central Zone, City of Lubbock
Geodetic Network and Aerial Control. Distances are Surface, U.S. Survey Feet.
March 7, 2014
OF
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' 8-REN1 CARR L
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Brent Carroll SURA
Registered Professional Land Surveyor
No. 5410 State of Texas