HomeMy WebLinkAboutResolution - 2020-R0170 - Public Infrastructure Funding Agreement With LBP TIF And LEDA - 05/26/2020 Resolution No. 2020-RO170
Item No. 7.1.1
May 26, 2020
RESOLUTION
WHEREAS, on December 2, 2009, the City Council of the City of Lubbock (the "City
Council") authorized and established the Lubbock Business Park Tax Increment Financing
Reinvestment Gone 93 (the "TIF") for, among other things, to promote the development of
the Lubbock Business Park area to the benefit the City of Lubbock (the "City"), its
residents, and property owners; and
WHEREAS, at its meeting on April 23, 2020, the TIF Board unanimously approved an
agreement between the TIF and the Lubbock Economic Development Alliance, a State of
Texas economic development corporation ("LEDA") for the provision of funding
construction and development of certain public infrastructure in the TIF; and
WHEREAS, the TIF Board recommends that the City Council approve the Public
Infrastructure Funding Agreement, Contract No. 15342; and NOW THEREFORE:
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the City Council hereby approves the Public Infrastructure Funding Agreement by
and between the TIF and LEDA, attached to and incorporated within this Resolution.
Passed by the City Council on May 26, 2020
DANIEL M. POPE, MAYOR
ATTEST:
Rebe a Garza, City Secr tary
APPROVED AS TO CONTENT:
Brianna Gerardi, Business De opment Director
APPROVED AS TO FORM:
Yb, Y&
�
K Ili Leisure, ssistant City Attorney
ccdocs/RFS.Adoption—Lubbock Business Park'rIF Recommendation—Public Infrastructure
05.12.20
Resolution No. 2020-RO170
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 budget for the Project
being attached hereto as"Exhibit A"and with the site plan of the Project being attached hereto as"Exhibit
B";and
WHEREAS,at its meeting on April 23,2020,the Board reviewed and unanimously approved the budget
and site plane 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"Pians")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 or Lubbock&LEDA—Ivory Avenue Pate t
(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) Re nests 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—Boards Assurances
(a) Action Approved. At its meeting on April 23,2020,the Board reviewed and unanimously approved
the design and budget for the Project
(b) Financial Resources. The Board represents and warrants that it has dedicated an amount not to
exceed three million two hundred sixty-five thousand five hundred three and 00/100 dollars
($3,265,503.00)for the completion of the Project.
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 S—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-Ivory Avenue 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 shal l 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 under this 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 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 30 day
notice.
Public Infrastructure Funding Agreement—City of Lubbock&LEDA—Ivory Avenue 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
"A"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
Attention: Business Development Director Attention: CFO
P.O.Box 2000 1500 Broadway,#6
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-Ivory Avenue 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 sea.,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
al l 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__ May 26 ,2020.
SIGNATURES
For:The CITY For: LEDA
DANIEL M.POPE,MAYOR n s orne,CEO
Public Infrastructure Funding Agreement-City of Lubbock&LEDA-Ivory Avenue Page 5
ATTEST:
Reb cca Garza,City Secret ry
APPROVED AS TO CONTENT:
Brianna Gerardi,Business Dev opmen _rector
APPROVED AS TO FORM:
�& 'Ami-k
lli Leisure,Assistant City Attorney
Public Infrastructure Funding Agreement—City of Lubbock&LEDA—Ivory Avenue Pone 6
Exhibit"A"-Budget
Public Infrastructure Funding Agreement-City or Lubbock&LEDA-Ivory Avenue
LUBSOICK
ECONOMIC
DEV
DEVELOPWPNENT
rM
ALLIANCE'
Lubbock Business Park South Half Infrastructure Improvements
Lubbock,Tx
Executive Summary of Total Improvements PROJF.CI'I
ENGINEER'S OPINION OF PROBABLE COST
FOR ESTIN1ATING PURPOSES ONLY
4/20/2020
CNIAR Pre-Construction Phase Fees $ 15,000.00
CMAR Construction Phase Fees $ 115,000.00
CNIAR General Conditions $ 26,000.00
Bast Bid
Roadway-N Ivory,Ave $ 2,552,502.50
Professional Fees
TaskOMGT $ 50.000.00
Task 2FDU
Task 3FDS $ 168.000.00
Task4BID $ 12,000.00
Task 5CON $ 90 000.00
Task6RPR s 140000.00
Task7CLO S 12,000.00
Task 8SSD $ 35.000.00
Task 9SSC S 50,000.00
Subtotal Professional Fees $ 557,000.00
PROJECT TOTAL(CNIAR+BASE BID+PROFESSIONAL FEES) S 3,265,502.50
This OPC wet prepared by Dnvid Green,P.E.H12fi066.Firm No.560,and shall not be road for construction,permitting and other construction purposes.
X120191230619103 DSGN103 RLPT\02 Opinion_of Cosi(OPC)1050_CIVIL'-.01_Fee_Development\Budg(-.ry_Round_2'-
2306 OPStreets Scenario I xlsx
tuatrxK
,«ottoutc Lubbock Business Park South Half Roadway Improvements
ViVDIT
Attu W Base Bed-N Ivory Ave s
Lubbock,TX
ENGINEER'S OPINION OF PROBABLE COST
FOR ESTIMATE PURPOSES ONLY
4 20:2020
ESTIMATED
Number DESCRIPTION UNITS QUAN'TITI UNIT AMOUNT
PRICE
I iMobilizzlion Is 1.00 S 190,000.00 S 190,00020-
2 Prepare Right-of-Way sta 13.50 S 750.00 S 10,125 00
3 Excavatton(Roadway) c Y 23,922.50 5 10.00 S 239,225 00
4 Embankment Roadwa Cy 6,665.00 S 12.00 S 79,980 00
5 Excavatlon Channel Cy 6,845.00 S 10.00 S 68,450 00
6 Embankment lExisting Channel CS 7050.00 S 12,09 S 84600 00
7 9"Conlinuousl Rcmforccd Concm a Pavement SY 10,590.00 5 80.00 S 84:,200 00
8 Concrete Bnek Pavers sy 905.00 S 100.00 S 90,50000
9 Accessible Curb Rams ea 10 00 5 1 200.00 S 12 r700 00
10 Concrete Curb and Goner if 4,99500 5 18.00 S 89,910 00
11—Sawtooth Curb and Gutter if 435.00 S 2000. S 8,70000
12 Concrete Cradle Cy 32500 S 200.00 S 65 000 00
13 Concrete Rim 232.00 S 150.00 S 34,800 00
14 Rocs,Riprap Cy 347.00 S 150.00 S 52,050 00
15 Seeding s• 10,440 00 S 6.00 S 62,640 00
16 SW3P Is 1.00 5 17.000.00 S 17,000 00
17 Barricades and Traffic Control Is 1.00 s 5,000.00 S 5,00000
18 PavementMarkln 4` White 8raken MuRI of mer if 67500 S 2.50 S 1,68750
19 Pavement Marktn 8" White Solid)(MuM polymer) if 1,44500 S 3.00 S 4,335 00
20 Pavement MarkIng Symbol Arrow White Prefabricated Pressure lied ea 600 S 750.00 S 4,50000
21 5'x 2 5 RCB if 53400 S 300.00 S 160,200 00
22 Safm End Treatment ea 6.00 S -7,50000 S 45,00000
23 Roadwa•Illumination Pole Assembly ea 4.00 S 5 500 00 S 22 00000
24 PVC Conduu if 1,500.00 S Sao S 7 500 00
25 Electrical Conductor No 6 Bare if 1,500.00 S 100 S 1,50000
26 Electrical Conductor No 6 (Insulated) If 3,000.00 S 2.00 S 6,00000
27 Ground Box ea 4.00 S 90000 s 1,600 00
28 Elecincal Service ea loo S 6,000.00 S 6,000 flO29 Contin enc•(IS°o) Is 100 s 333,00000 S 333,000Total Construction S 2,552,502.
1DaialTro)eclst201912306.19103 1DSGNt03 REP-1102 OpinionoF_Cost(OPC)•.050 CIVIL-01 Fee Developmenl\Budgetmy Round 4Tro)ect [?020.04-
17 2306 OPC Pro:ectl
Exhibit"B"—Site Plan
Public Infrastructure Funding Agreement-City or Lubbock&LEDA Ivory Avenue Page A
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